Voluntary Health Association of Punjab versus Union of India decided on 8th November, 2016
By Robin David
The Supreme Court (Justice Dipak Misra and Justice Shiva Kirti Singh) in its judgment dated November 8, 2016 raised serious concerns on the indifference in the proper implementation of the provisions of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994. (PC-PNDT Act)
The issues highlighted by the petitioner were the increase of female foeticide, resultant imbalance of sex ratio and the indifference in the implementation of the stringent law that is in force.
The Court ruled that
“Decrease in the sex ratio is the sign of a colossal calamity and it cannot be allowed to happen. Concrete steps have to be taken to increase the same so that invited social disasters do not befall on the society. The present generation is expected to be responsible to the posterity and not to take such steps to sterilize the birth rate in violation of law. The societal perception has to be metamorphosed having respect to legal postulates.”
The PC-PNDT Act has been made to stop the misuse of pre-natal diagnostic techniques for determination of sex of the foetus, leading to female foeticide. The Act prohibits the advertisement of pre-natal diagnostic techniques for detection or determination of sex. The Act does not permit and regulate the use of pre-natal diagnostic techniques for the purpose of detection of specific genetic abnormalities or disorders. However, it permits the use of such techniques only under certain conditions by the registered institutions and to punish for violation of the provisions of the proposed legislation. The Preamble of the Act provides for the prohibition of sex selection before or after conception, and for regulation of pre-natal diagnostic techniques for the purposes of detecting genetic abnormalities or metabolic disorders or chromosomal abnormalities or certain congenital malformations or sex-linked disorders and for the prevention of their misuse for sex determination leading to female foeticide and for matters connected therewith or incidental thereto.
The Court in its decision emphasized that the predicament with regard to female foeticide by misuse of modern science and technology has aggravated and enormously affected the sex-ratio in India. The Court highlighted that Parlaiment had enacted the Act to eradicate this malady.
The Court took note of the fact that in 2001 directions were issued inter alia to create awareness about the Act, setting up of an inspection and monitoring committee. It noted that the 2011 Census of India shows a sharp decline in the female sex ratio in many states. In 2013, the Court observed that there had been no adequate or effective supervision or follow-up action so at to achieve the object and purpose of the Act. In 2013, the Court passed several directions for implementation of the objectives of the Act including for the Central Supervisory Board and the State & District Advisory Committees to oversee the implementation of the Act and to take steps to seize records, seal machines, and institute proceedings in case of violation of the Act.
The Court observed that
“When a female foetus is destroyed through artificial means which is legally permissible, the dignity of life of a woman to be born is extinguished. It corrodes the human values”.
Significantly, the Court noted that the dropping of sex ratio still remains a social affliction and a disease. Observing that there has been no effective supervision or follow-up action to achieve the object and purpose of the Act, and considering the far reaching impact of the problem, the Court issued the following directions for proper implementation of the Act:
(a) All the States and the Union Territories in India to maintain a centralized database of civil registration records from all registration units so that information can be made available from the website regarding the number of boys and girls being born.
(b) The information that shall be displayed on the website shall contain the birth information for each District, Municipality, Corporation or Gram Panchayat so that a visual comparison of boys and girls born can be immediately seen.
(c) The statutory authorities if not constituted as envisaged under the Act shall be constituted forthwith, and the competent authorities shall take steps for the reconstitution of the statutory bodies so that they can become immediately functional after the expiry of the term. That apart, they shall meet regularly so that the provisions of the Act can be implemented in reality and the effectiveness of the legislation is felt and realized in the society.
(d) The provisions regarding the prohibition of advertisement relating to pre-natal determination of sex and punishment shall be strictly adhered to. The Appropriate Authorities shall be imparted periodical training to carry out the functions as required under various provisions of the Act.
(e) If there has been a violation of any of the provisions of the Act or the Rules, proper action has to be taken by the authorities under the Act so that the legally inapposite acts are immediately curbed.
(f) The Courts which deal with the complaints under the Act shall be fast tracked and the concerned High Courts shall issue appropriate directions in that regard.
(g) The judicial officers who are to deal with these cases under the Act shall be periodically imparted training in the Judicial Academies or Training Institutes, as the case may be, so that they can be sensitive and develop the requisite sensitivity as projected in the objects and reasons of the Act and its various provisions and in view of the need of the society.
(h) The Director of Prosecution or, if the said post is not there, the Legal Remembrancer or the Law Secretary shall take stock of things about the lodging of prosecution so that the purpose of the Act is subserved.
(i) The Courts that deal with the complaints under the Act shall deal with the matters in promptitude and submit the quarterly report to the High Courts through the concerned Sessions and District Judge.
(j) The learned Chief Justices of each of the High Courts in the country are requested to constitute a Committee of three Judges that can periodically oversee the progress of the cases.
(k) The awareness campaigns with regard to the provisions of the Act as well as the social awareness shall be undertaken.
(l) The State Legal Services Authorities of the States shall give emphasis on this campaign during the spread of legal aid and involve the para-legal volunteers.
(m) The Union of India and the States shall see to it that appropriate directions are issued to the authorities of All India Radio and Doordarshan functioning in various States to give wide publicity pertaining to the saving of the girl child and the grave dangers the society shall face because of female foeticide.
(n) All the appropriate authorities including the States and districts notified under the Act shall submit a quarterly progress report to the Government of India through the State Government and maintain Form H for keeping the information of all registrations readily available as per sub-rule 6 of Rule 18A of the Rules.
(o) The States and Union Territories shall implement the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) (Six Months Training) Rules, 2014 forthwith considering that the training provided therein is imperative for realising the objects and purpose of this Act.
(p) As the Union of India and some States framed incentive schemes for the girl child, the States that have not framed such schemes, may introduce such schemes.
About a woman’s right to live, the Court further observed that “It needs no special emphasis that a female child is entitled to enjoy equal right that a male child is allowed to have. The constitutional identity of a female child cannot be mortgaged to any kind of social or other concept that has developed or is thought of. It does not allow any room for any kind of compromise. It only permits affirmative steps that are constitutionally postulated. Be it clearly stated that when rights are conferred by the Constitution, it has to be understood that such rights are recognised regard being had to their naturalness and universalism. No one, let it be repeated, no one, endows any right to a female child or, for that matter, to a woman. The question of any kind of condescension or patronization does not arise.”
—The writer is a Supreme Court advocate