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CENTRAL UNIVERSITY OF SOUTH BIHAR
SCHOOL OF LAW AND GOVERNANCE
WOMEN AND CRIMINAL LAW
ASSIGNMENT TOPIC
Pre-Natal Diagnostic Techniques
(Prohibition of Sex Selection )Act,
Submitted By: Submitted To:
Kumar Anirudh Dr. Pallavi Singh
CUSB21131250 52 Assistant Professor
5 TH^ Semester /Sec-B School of Law and
Session- 2021 - 26 Governance
INTRODUCTION
The gender discrimination though is a universal and usual phenomenon practices across time and space with fewer exceptions, it takes a deep and pervasive from in India as it starts not just with birth of the girl child but even before that. To put it succinctly the practice of 'sex selection' and sex selective abortions India has not only adversely affected an already skewed child sex ratio but has disastrous consequences for the future. The tradition of 'son-preference syndrome' coupled with the modern medical technology that has enabled early detection of sex of the foetus has spelled doom for the defenceless female foetus. Surprisingly, this practice is more among the rich, urbane and educated families than the rural, poor and less educated couples. The centuries of psychological conditioning in the case of women, their vulnerability and helpless conjoined with prejudice towards girl child has turned the protectors into perpetrators of a heinous crime. It is in this context the Govt. of India enacted a specific legislation titled 'Pre-Conception and Pre-natal Diagnostic Techniques (Prohibition of Selection of Sex) Act- 1994', in short PCPNDT Act to curb this menace. However, the chasm between the law in theory and law in practice at least in this case seems a bit far due to various socio-economic and cultural factors. In this article an attempt has been made to systematically analyse the issue from the perspective of sociology of law. The Pre-conception & Pre-natal Diagnostics Techniques (PC & PNDT) Act, 1994 was enacted in response to the decline in Sex ratio in India, which deteriorated from 972 in 1901 to 927 in 1991. The main purpose of enacting the act is to ban the use of sex selection techniques before or after conception and prevent the misuse of prenatal diagnostic technique for sex selective abortion. Offences under this act include conducting or helping in the conduct of prenatal diagnostic technique in the unregistered units, sex selection on a man or woman, conducting PND test for any purpose other than the one mentioned in the act, sale, distribution, supply, renting etc. of any ultra sound machine or any other equipment capable of detecting sex of the foetus. The act was amended in 2003 to improve the regulation of the technology used in sex selection. The Act was amended to bring the technique of pre conception sex selection and ultrasound technique within the ambit of the act.
GENESIS OF THE PCPNDT ACT
he Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Amendment Act, 2002, is endeavours to penetrate the social, legal, ethical and medical veil of indifference towards the "Missing Girl Child". This Act was passed in 1994 and came into force from 1ª January, 1996. It was further amended in 2003. This Act has been divided into 8 chapters. It provides for the regulation of genetic counselling centres, genetic laboratories and genetic clinics, regulation of pre-natal diagnostic techniques, central supervisory boards, appropriate authority and advisory committee, registration of genetic counselling centres, genetic laboratories and genetic clinics, offences and penalties. The intervention of the Hon'ble Supreme Court in CEHAT, MAUSAM & DR. Sabu Geroge v. Union of India & Ors (AIR 2003 SC 3309) has elaborated the ambit of the law. Unfortunately, this comprehensive and well thought over laws in the country has not been very effective in combating the menace of the declining female child sex ratio in Madhya Pradesh. Prior to the PCPNDT Act, the Medical Termination of Pregnancy (MTP) Act was enacted. The act was implemented in the major states of India except Sikkim. Under the act, abortion is legal if the pregnancy that it terminates endangers the life of the woman or causes grave injury to her physical or mental health or is likely to result in the birth of a baby with physical or mental abnormalities or is a result of rape or contraceptive failure. The act further states that abortions could only take place in government approved health facilities specifically approved for conducting abortions and by registered medical practitioners. Sex determination technologies arrived in India in 1975 for determination of genetic abnormalities after the enactment of the MTP Act. However, these techniques came to be widely used for determining the sex of the foetus and subsequent abortions if the foetus is female. In view of the widespread misuse this technique; the Maharashtra government enacted the Maharashtra regulation of the Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 by the government of India. The 1994 Act provided for the "regulation of the use of prenatal diagnostic techniques for the purpose of detecting genetic or metabolic disorders, chromosomal abnormalities or certain congenital malformations or sex linked disorders and for the prevention of the misuse of such techniques for the purpose of sex determination leading to female foeticide and for matters connected therewith or incidental thereto." Except under certain specific conditions, no individual or genetic counselling centres or genetic laboratory or genetic clinic shall conduct or allow the conduct in its facility of, pre-natal diagnostic techniques including ultra- sonography for the purpose of determining the sex of the fetus; and "no person conducting pre- natal diagnostic procedures shall communicate to the pregnant women concerned or her relative the sex of the foetus by words, signs or in any other manner." The Act provides for the constitution of the Central Supervisory Board (CSB) whose function is mainly advisory and for the appointment of an Appropriate Authority (AAs) in States and Union Territories to enforce the law and penalize defaulters and Advisory Committee/s (ACs) to aid and advise the AAS.
The law was amended in 2003 following a Public Interest Litigation field in 2000 to improve regulation of technology capable of sex selection and to arrest the startling decline in the child sex ratio as revealed by the Census 2001. The amended Act now called "The Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act" not only prohibits determination and disclosure of the sex.
FEATURES OF THE PCPNDT ACT
The PCPNDT statute defines sex selection as the process of determining the foetus’s sex and removing it if it is of undesirable sex. Prenatal diagnostic techniques in unauthorised units, sex selection on a man or woman able to conduct Pre-natal Diagnostics tests for purposes other than those specified in the Act, and the selling, distribution, supply, renting, etc. of an ultrasound machine or other equipment capable of detecting the sex of the foetus are all prohibited under this Act. The principal features of the Act are:
- The Act forbids sex discrimination both before and after conception.
- By limiting their usage to detecting genetic abnormalities, metabolic diseases, chromosomal abnormalities, certain congenital deformities, hemoglobinopathies, and sex-related illnesses, it controls the use of pre-natal diagnostic methods including ultrasonography and amniocentesis.
- The sex of the foetus will not be determined by any test, including ultrasonography, at any laboratory, centre, or clinic.
- No one, not even the person performing the legal process, is allowed to express the sex of the foetus to the expectant mother or her family by words, signs, or any other means.
- Under Section 22 of the Act, anyone who places a notice, circular, label, wrapper, or other document advertising pre-natal and pre-conception sex determination services, or publicises through interior or other media in digital or print form, or participates in any noticeable representation made by hoarding, wall painting, signal, light, sound, smoke, or gas, can be sentenced to up to three years imprisonment and fined Rs. 10,000. AIM OF THE PCPNDT ACT •To make sure that all district-level promotion programmes for girl children are put into action. •Through community involvement, the PNDT Act’s implementation is being monitored and evaluated. •Ensure that implementing agencies are held accountable by participating in community monitoring of the Act’s implementation. •Using Anganwadi personnel and Accredited Social Health Activists (ASHAs) to keep track of pregnancies, Medical Termination of Pregnancies (MTP), and birth registration.
- Locating Act offenders by carrying out thorough audits of the form “F” filled out for the clinic’s pregnant patients. •Create an annual plan for the country, state, and district.
- The expectant mother has experienced at least two spontaneous abortions or foetal losses.
- The expectant woman had been exposed to substances, such as drugs, radiation, infections, or toxins.
- The expectant mother’s family has a history of genetic diseases, such as mental impairment or physical abnormalities like spasticity.
- Whatever other requirements that the Central Supervisory Board may specify
- Except for the purposes listed in Section 5(2) of the PCPNDT Act, no one, including a relative or the pregnant woman’s husband, should solicit or promote the use of any pre- natal diagnostic methods on her. Section 5 of the Act requires written authorization from the expectant mother and a ban on discussing the foetus’ gender. Under Section 6, the determination of gender is forbidden. APPEAL AGAINST REGISTRATION UNDER THE PCPNDT ACT It is granted in accordance with the PCPNDT Act’s Section 21. An appeal against registration suspension and revocation may be lodged with the following authorities, which are:
- Central government acting against a competent central authority’s directive,
- State government acting against a state’s competent authorities’ directives.
OFFENCES AND ITS PENALTIES UNDER THE PCPNDT ACT
Section 22 – Under Section 22, advertising of any clinic, laboratory, or other location that uses radiography, imaging methods, etc. in connection with a facility for prenatal sex determination is forbidden. Any violation of the provisions in this section will result in a penalty, which includes up to three years in prison and a fine that might reach ten thousand rupees. Section 23 – While Section 23 addresses this, any gynaecologist, other health practitioners, owner of a genetic laboratory, counselling centre, or clinic, or employee of such a location who renders his professional or technical services and does so in violation of any provisions under this Act is also in violation of the law. A fine of up to 10,000 rupees and a sentence of up to three years in imprisonment to the offender under Section 22 of the Act. And, if convicted again, the penalty could be increased to five years’ imprisonment and a fine of up to 50,000 rupees under Section 23 of the Act. The relevant
authority may notify the state medical council of the name of the concerned medical petitioner, according to clause (2) of this Section. The purpose of penalties is to take the required measures, suspend the defendant’s registration in the event that charges are brought, and, in the event that he is found guilty, have his name permanently or for five years removed from the council’s register. If a person consults a genetic counselling centre, clinic, or laboratory for any cause other than those listed in subsection (2) of Section 4 , according to clause (3) of this Section, they might face up to five years in jail and a fine of 50,000 rupees. Additionally, a second conviction carries a penalty of up to five years in jail and a fine of one lakh rupees. The proviso in this Section states that any woman who is required to undergo a diagnostic procedure for sex selection is exempted from the application of Section 23 subsection (3). Additionally, Section 24 of the Act presumes that the spouse and her family are responsible for pressuring a woman to have a diagnosis other than the diagnostic procedures listed in Section 4(2). And, under Section 23 subclause (3) , such a person is held accountable for aiding an offence and is subject to a penalty for that offence. Section 25 specifies the penalty for the violation of the PCPNDT Act’s requirements. If no punishment is specified elsewhere in this Act for such a violation. Such a penalty may include three months imprisonment, or a fine of up to a thousand rupees, or both. This fine may increase on a subsequent conviction. The amount is increased to 500 rupees per day for as long as there are other convictions following the first one. Under Section 26 , the offences committed by businesses, whether intentionally or negligently, are covered. The person in charge of the administration of the organisation will be held accountable and punished appropriately if such an offence is committed with his or her permission. Every offence is cognizable under Section 27 , which also prohibits bail and compounding. Under Section 28 of the Act, the appropriate authorities are mentioned who can take cognizance of an offence given under the Act, just as the jurisdiction of the specific courts is outlined. The necessity for clinics and other organisations to maintain records is outlined in Section 29. The Appropriate Authorities have the authority to look for and seize records under Section 30. Section 32 of the Act mentions the authorities which can make rules in accordance with the Act.
LOOPHOLES IN THE PCPNDT ACT
Chances of corruption Registration of Genetic Guidance Centres and Laboratories may only be used to legalise private clinics that continue to engage in these operations for financial gain despite the law’s ineffective deterrents. Additionally, licencing would open up a new door for corruption to get around the paperwork. We are now more conscious that these tests should only be conducted in publicly accountable government hospitals rather than endorsing the private sector. Elimination of fear The appropriate authorities have confiscated the ultrasound device in multiple instances. According to the PCPNDT Act’s provisions, if the Appropriate Authority seizes any ultrasound equipment or other foetal sex detection equipment used by an organisation not registered under the Act, then the organization’s machine is only released upon payment of a penalty equal to five times the registration fee and upon receipt of an assurance from the organisation that it will not engage in foetal sex detection or sex selection before or after conception. This proviso eliminates the Act’s fear or deterrent elements. It merely communicates that after making a minimal payment and submitting an undertaking, the person may continue working. To stop encouraging those who commit this offence to break the rules of this Act, this rule should either be repealed or changed. Punishing the victim The law’s attempt to dissuade women by punishing them is its most unpleasant and illogical aspect. In a setting where the social structure gives women very little room to make independent judgments and forces them to make “choices,” such a provision can only make women’s agony worse. Only the preservation of the interests of those responsible for providing such a facility can be facilitated by penalising women. No local authorities The establishment of local vigilance committees, which would aid in effective implementation, is not contemplated, and the only nominal entities are those at the central and state levels. Due to the extremely high earnings made from this industry, the punishment for the offenders is minimal and incapable of serving as a deterrent.
LANDMARK CASES
Union of India v. Vinod Soni & Others, 2005
In this case, the petitioners were a married couple. They had essentially raised two arguments against the Act’s constitutionality: first, that it violates Article 14 of the Indian Constitution, and second, that it violates Article 21. However, the Article 14 challenge was not pushed into submission at the time of the hearing. However, the Hon’ble High Court pointed out the flaw in this justification by stating that “the right to personal liberty cannot be stretched in any way to include the freedom to forbid the conception of a female or male foetus, which should be left to the will of nature.” The High Court held that “these rights, even if further expanded to the extremes of the possible elasticity of the provisions of Article 21, cannot include the right to selection of sex, whether preconception or postconception,” citing Supreme Court decisions that explain that Article 21 includes the right to food, clothing, a decent environment, and even protection of cultural heritage. The High Court noted that “this Act is factually enacted to advance the child’s right to complete development as provided for under Article 21.” Therefore, regardless of the infant’s sex, a conceived child has a right to full development under Article
- As a result, the High Court rejected the petition, ruling that there was no evidence at all that Article 21 of the Constitution was violated.
Suo Motu v. State of Gujarat, 2008
The following issues were raised in this case for consideration:
- Does Section 28 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 permit a court to find a violation of the Act upon receipt of a complaint from any official authorised by the appropriate authorities to file such a complaint?
- Does the proviso to subsection (3) of Section 4 of the PNDT Act mandate that the complaint should include specific claims about the violation of Sections 5 and 6 of the Act?
- Is it the authority’s responsibility to establish that there was a contravention of the provisions of Section 5 or 6 of the Act
Judgment
- A court may take notice of an offence under the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, on a complaint submitted by any official authorised in that regard by the relevant authorities, according to Section 28 of the PNDT Act.
- The proviso to Section 4(3) of the PNDT Act does not mandate that the complaint alleging accuracy or inadequacy in preserving records in the required way should also contain an accusation of violating Sections 5 or 6 of the PNDT Act . • The burden of proving a violation of Sections 5 or 6 does not fall on the prosecution in a case based on allegations of a shortcoming or error in maintaining the record in the manner specified by sub-section (3) of Section 4 of the PNDT Act.
BIBLLIOGRAPHY
BOOKS
DR. S.C.TRIPATHI , WOMEN and CRIMINAL LAW, 2021,3rd^ Edition
WEBSITES
Handbook on Pre-Conception & Pre-Natal Diagnostic Techniques Act, 1994 and
Rule with Amendment
Role of Judiciary to Implement the Pre-Conception and Pre-Natal Diagnostic
Techniques(Prohibition of Sex Selection) Act,1994/ SCC Blog
PCPNDT Act, 1994- Introduction, Features and Amendment(byjus.com)
Law, Liberty, and Life: a discursive analysis of PCPNDT Act
