09, May 2019 | Mansi Mehta
On Friday, May 3, the Supreme Court, in a significant judgment, rejected a petition by an association of gynaecologists and obstetricians, that challenged the constitutionality of two key sections of the Pre-Conception & Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994.
The petitioner had argued that anomalies in paperwork had made gynaecologists and obstetricians susceptible to prosecution, and such irregularities, under the law, are considered equivalent to the offence of sex determination, thereby violating Article 14 (equality before law) and Article 19 (which guarantees the right to practice any profession, or to carry on any occupation, trade or business). However, the Supreme Court bench, comprising Justices Arun Mishra and Vineet Saran disagreed, stating, “Non maintenance of record is spring board for commission of offence of foeticide, not just a clerical error.”
What was the petitioner seeking?
The petitioner, the Federation of Obstetrics and Gynaecological Societies of India (FOGSI), had argued against Sections 23(1) and 23(2) of the PCPNDT Act, stating, “…even the smallest anomaly in paperwork which is, in fact, an inadvertent and unintentional error has made the obstetricians and gynaecologists vulnerable to the prosecution by the Authorities all over the country,” The News Minute reported. Per Hindustan Times, the petition stated, “the license of members of noble charitable profession are being suspended on account of clerical errors/mistakes in paper work under the Act and the Rules made thereunder. On account of clerical errors in filling up of the forms, it would not be appropriate to inflict the punishment…” adding, “The Act fails to classify offence of actual sex determination vis-à-vis clerical error in maintenance of record. There is no gradation of offence.” Senior advocates Shyam Divan and Soli Sorabjee, who represented FOGSI, contended that the Act did not distinguish between criminal offences and irregularities in documentation, such as incomplete Form F (a mandatory record containing information of a pregnant person undergoing an ultrasound, such as previous children and obstetric history), clerical errors like an incomplete address, lack of a date, objectionable pictures of Radha Krishna in the sonography room, and the like, the Deccan Herald reported.
The sections of the Act in question cover these offences and penalties. Section 23(1) addresses “Any medical geneticist, gynaecologist, registered medical practitioner or any person who owns a Genetic Counselling Centre, a Genetic Laboratory or a Genetic Clinic or is employed in such a Centre, Laboratory or Clinic and renders his professional or technical services to or at such a Centre, Laboratory or Clinic, whether on an honorary basis or otherwise,” stating that if an individual violations the Act, they are punishable with up to three years’ imprisonment, and a monetary fine of up to Rs. 10,000. Section 23(2) states that the name of the registered medical practitioner will be reported to the State Medical Council to take all necessary action, including the suspension of their registration of a court frames charges against them and until the case is disposed of, and removing their name from the Councils’ register for five years (for a first offence) or permanently (for repeated offence), if the medical practitioner is convicted.
“At present, the punishment for any clerical error in Form F is the same as if someone were to perform illegal sex determination. This is what the petition filed by FOGSI sought to change,” an FOGSI official told The News Minute, adding, “The form is complex and requires a lot of extensive details. Clerical errors do happen and that alone cannot be used to sentence someone to such a harsh punishment. It needs to be more flexible”.
What did the Supreme Court say?
In its judgement, the Supreme Court refused to dilute the sections that were challenged, stating that “dilution of the provisions of the Act or the Rules would only defeat the purpose of the Act to prevent female foeticide, and relegate the right to life of the girl child under Article 21 of the Constitution, to a mere formality.”
With regards to the Form F, the Court highlighted several instances in which the forms have contained errors, including incorrect phone numbers, wrong identity and proofs of address, or missing identity proofs, and even incorrect obstetric and abortion history. In one case, the patient’s signature was missing. The Court stated, “Thus, the nonfilling of information cannot be termed to be clerical error, but in case it is kept vague that itself facilitates an offence,” later adding, “The wholesome social legislation would be defeated in case Form is not filled which is sine qua non toto undertake tests/procedures if such condition does not exist, no such procedure can be performed and diluting the provisions would be against the gender justice.”
The Court said, “The Act intends to prevent mischief of female foeticide and the declining sex ratio in India. When such is the objective of the Act and the Rules and mischief which it seeks to prevent, violation of the rights under Part III of the Constitution is not found,” and later highlighted the gravity of the ill of female foeticide, stating, “The mischief sought to be remedied is grave and the effort is being made to meet the challenge to prevent the birth of the girl child. Whether Society should give preference to male child is a matter of grave concern. The same is violative of Article 39A and ignores the mandate of Article 51A(e) which casts a duty on citizens to renounce practices derogatory to the dignity of women. When sex selection is prohibited by virtue of provisions of Section 6, the other interwoven provisions in the Acts to prevent the mischief obviously their constitutionality is to be upheld.”
Moreover, the Supreme Court also noted that “There can be a legislative provision for imposing burden of proof in reverse order relating to gender justice. In the light of prevalent violence against women and children, the Legislature has enacted various Acts, and amended existing statutes, reversing the traditional burden of proof.” It cited examples where the burden of proof has been reversed, including in “Sections 29 and 30 of the Protection of Children from Sexual Offences (POCSO) Act in which there is presumption regarding commission and abetment of certain offences under the Act, and presumption of mental state of the accused respectively,” and also mentioning sections of the Indian Evidence Act. The Court also cited judgments in multiple previous cases as precedent to support its emphasis on the proper maintenance of records; these included the Voluntary Health Association of Punjab v. Union of India (2013), the Suo Motu v. State of Gujarat (2009), and Centre for Enquiry into Health and Allied Themes (CEHAT) v. Union of India, (2001), with the latter being a landmark judgment addressing the issue of female foeticide.
In its emphasis on adequate maintenance of records, the Court echoed a government directive earlier this year, in which it declared that the “non-maintenance of records is not merely a technical or procedural lapse in the context of sex determination, it is the most significant piece of evidence for identifying the accused. It is further contended that clerical errors in Form ‘F’ fall under Section 4 of the Act and any deficiency or inaccuracy found therein shall amount to contravention of the provisions of Section 5 or 6 of the Act unless contrary is proved by the person conducting such ultrasonography,” per the Hindustan Times.
Female foeticide in India
Female foeticide is a grave concern for India, with several states having alarmingly low sex ratios. The Supreme Court itself, in its May 2019 judgment, noted the consequences of a lopsided sex ratio, stating, “A skewed sex ratio is likely to lead to greater incidences of violence against women and increase in practices of trafficking, ‘bridebuying’ etc,” and noting that “The rigorous implementation of the Act is an edifice on which rests the task of saving the girl child.”
The Pre-Conception and Pre-Natal Diagnostic Techniques Act (PNDT Act) was passed by Parliament in 1994, and came into force on January 1, 1996, in response to the declining sex ratio in the country, and after ultrasound technology that facilitated prenatal sex determination was widely used. The Act was amended in 2003 to more adequately regulate technologies that emerged for sex determination and selection, and, on February 14, 2003, was renamed the Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act (PCPNDT Act).
Unfortunately, the Act has not been adequately implemented. In 2011, researchers at the Centre for Global Health at the University of Toronto estimated that four to 12 million female foetuses had been aborted between 1980 and 2010 on the basis of their sex. In 2015, DownToEarth noted that, according to the 2011 census, the child sex ration (0-6 years) decreased to 919 girls per every 1,000 boys compared to the 2001 census, when it was 927 girls for every 1,000 boys. There was, however, an increase in the sex ratio, going from 933 females to 1,000 males in 2001 to 943 females to 1,000 males in 2011. The Supreme Court’s recent judgment noted that even after 24 years of the law being in place, there have been only 586 convictions out of 4,202 registered cases, which “reflects the challenges being faced by the Appropriate Authority in implementing this social legislation.”
In its July 2015 analysis of the PCPNDT Act that focused on the capital, Delhi, the India Today called the Act “a farce,” noting that “Various trial courts in Delhi have shied away from awarding the maximum punishment to offenders and instead let off the convicts with a nominal fine of Rs 1,000. The PNDT Act provides for a maximum punishment of three-year jail term and a penalty of up to Rs 50,000.” It added that in spite of rulings from the Supreme Court and several high courts, “the courts have shown their reluctance in sending the offenders to jail. In many cases, the convicts have been let off with a mere warning by the judge…” Data obtained through a Right To Information (RTI) application found that 31 of 52 cases under the Act had been pending in various Delhi courts, India Today reported, later adding that 20 such cases had been pending for more than a decade, despite the Supreme Court having ordered lower courts to adjudicate such cases within six months.
The Supreme Court on preventing female foeticide
This situation came about in spite of repeated instances in with the Supreme Court issued guidelines to make the implementation of the PCPNDT Act more effective. Per LiveLaw, these instances include CEHAT and others vs. Union of India and others (2001), CEHAT and others vs. Union of India and others (2003), and Voluntary Health Association of Punjab vs. Union of India and others (2013).
In CEHAT and others vs. Union of India and others (2001), the Court acknowledged the problem of female infanticide and foeticide, and directed the central government and the Central Supervisory Board (CSB) “create public awareness against the practice of pre-natal determination of sex and female foeticide through appropriate releases/programmes”. It also directed that the central government implement the PNDT Act and its associated rules “with all vigour and zeal”. The Court directed the CSB, a body established under the Act, to meet every six months, review and monitor the implementation of the Act, and issue directions to appropriate authorities in the states and union territories “to furnish quarterly returns” regarding the Act’s implementation and working. It also directed the CSB to formulate a code of conduct that should be followed by people working in the relevant bodies. The Court also issued directives to the states and union territories to also create awareness, and appoint appropriate authorities and advisory committees.
This judgment was delivered in response to a writ petition filed in 2000 under Article 32 of the Indian Constitution, which address remedies for the enforcement of rights. The petitioners were the Centre for Enquiry into Health and Allied Themes (CEHAT), which was the research centre of the Anusandhan Trust; the Mahila Sarvangeen Utkarsh Mandal (MASUM); and Dr. Sabu M. George, who had conducted extensive research in the field, per case analysis from the Strategic Advocacy for Human Rights (SAHR). The petitioners were concerned about the implementation of the PNDT Act.
The landmark Supreme Court judgment in the case, which came in 2003, detailed the government’s efforts during the three years since the petition was filed. In that judgement the Court recalled its previous order of May 2001. It outlined the trajectory of the case since. In November 2001, the respondent, the counsel for the respondent, the Union of India, said that the central government had decided to take concrete steps for the Act’s implementation, and suggested that a National Inspection and Monitoring Committee (NIMC) be established; the Supreme Court ordered for this to be so.
In December 2001, it was noted that certain state governments had not provided names of members of advisory committees, and they were directed to do so. The Court also stated, “”For implementation of the Act and the rules, it appears that it would be desirable if the Central Government frames appropriate rules with regard to sale of ultrasound machines to various clinics and issue directions not to sell machines to unregistered clinics.” In March 2003, it was contended that people were unaware of the Act being amended, and several reliefs were sought, to address advertising, people or organisations selling ultrasound machines, and other aspects.
In September 2003, when the key judgement was delivered, the Court stated, “In view of the various directions issued by this Court, as quoted above, no further directions are required except that the directions issued by this Court on 4th May, 2001, 7th November, 2001, 11th December, 2001 and 31st March, 2003 should be complied with.” The Supreme Court also further directed central, state and union territory governments to publish information through advertisements and via electronic media for effective implementation of the Act. The Court added, “This process should be continued till there is awareness in public that there should not be any discrimination between male and female child.” Another key directive addressed the NMIC, stating that it should “continue to function till the Act is effectively implemented.”
In November 2016, in Voluntary Health Association of Punjab vs. State of Punjab, the Supreme Court bench, comprising Justices Dipak Misra and Shiva Kirti Singh noted that the fact that a female child is entitled to the same equal rights as a male child required no special emphasis, LiveLaw noted. “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 Court stated.
The Court also issued additional directions, including ordering state and union territories 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.” It also stated that information available 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.” Notably, it also emphasised that “The provisions contained in Sections 22 and 23 shall be strictly adhered to. Section 23(2) shall be duly complied with and it shall be reported by the authorities so that the State Medical Council takes necessary action after the intimation is given under the said provision.”
The Supreme Court’s most recent decision, which upheld Sections 23(1) and 23(2) has been called “formidable” by Dr. George, who was one of the three original petitioners in 2000. “If no detailed record is maintained then how could violations even be detected? I was the original petitioner in 2000 when the Supreme Court emphasised record keeping,” Dr. George told the Hindustan Times.
The judgement may be read here: