Indian society is infamous for son preference and discrimination against the girl child leading to female foeticide and female infanticide. According to the Government of India, “Some of the reasons for neglect of girl child and low child sex ratio are son preference and the belief that it is only the son who can perform the last rites, that lineage and inheritance runs through the male line, sons will look after parents in old age, men are the bread winners etc. Exorbitant dowry demand is another reason for female foeticide/infanticide. Small family norm coupled with easy availability of sex determination tests may be a catalyst in the declining child sex ratio, further facilitated by easy availability of pre-conception sex selection facilities” Even though women’s intestate as well as ancestral property rights are safeguarded under their personal laws, in practice women do not get any legal hold on parents, ancestral or matrimonial property. The “Family Law of Usage and Customs of Gentile Hindus of Goa” codified under the Goa Civil Code allows “simultaneous polygamy” by a Hindu man to marry a second wife if the first wife does not have any child till the age of 25 or if she does not have a male child till the age of 30.
Prior to the invention of technology for sex selection of the foetus, female infanticide was widespread in India. The Government of India criminalised female infanticide under Sections 3153 and Section 3164 of the Indian Penal Code while dowry too was prohibited under the Dowry Prohibition Act of 1961. Nonetheless, incidents of infanticide continue to be reported regularly The National Crime Records Bureau (NCRB) of the Ministry of Home Affairs, Government of India recorded 2,266 cases of infanticide i.e. 113 cases per year across India during 1994 to 2014 with highest number of cases being reported from Madhya Pradesh with 537 cases followed by Uttar Pradesh with 395 cases and Maharashtra with 286 cases, among others.
By 1980s, female infanticide was replaced by female foeticide through preconception and pre-natal sex determination technology.7 The collusion of technology and traditions of son preference had devastating impact: as per the estimates of the Asian Centre for Human Rights (ACHR) provided in this report, during 1991 to 2011, a total of 25,49,3,480 girls i.e. 12,74,674 girls per year went missing including as a result of sex selection.
India enacted the Pre-Natal Diagnostic Techniques Act, 1994 (PNDT Act), rechristened as Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994 (PC&PNDT Act) in 2003 to address the menace of sex selection. As per the statement of the Government of India made before the parliament on 27.02.2015, since the PC&PNDT Act came into force in 1994, a total of 2,021 cases were registered with court and police as of September 2014.
Despite the PC&PNDT Act, India is fighting a losing battle against sex selection because of its non-enforcement. If about 25,49,3,480 girls approximately went missing as a consequence of sex selection from 1991 to 2011 and 2,021 court and police cases were filed from 1994 to 2014 under the PC&PNDT Act, it implies that on an average only 1 (one) court case was filed approximately for 12,614 cases of sex selection. As conviction was secured only in 206 cases during 1994-2014, it also implies that only 1 (one) conviction was secured per 1,23,755 cases of sex selection. This abysmal failure in the implementation of the PC&PNDT Act is evident despite numerous directions of the Supreme Court in CEHAT and Others v. Union of India, Voluntary Health Association of Punjab vs. Union of India & Ors and numerous judgments of the High Courts. That India registered 2,266 cases of infanticide against 2,021 cases under the PC&PNDT Act during 1994-2014 exposes poor implementation of the PC&PNDT Act as the sex selection in violations of the PC&PNDT Act (12 million missing girls per year) are far more widespread that female infanticide (113 cases per year).
Indeed, there is no national experience on the implementation of the PC&PNDT Act as many 18 out of 29 States and six out of seven Union Territories (UT) failed to effectively utilize the Act. As of September 2014, nine States i.e. Arunachal Pradesh, Himachal Pradesh, Kerala, Manipur, Meghalaya, Mizoram, Nagaland, Sikkim, Tripura and five UTs i.e. Andaman & Nicobar Island, Dadra & Nagar Haveli, Daman & Diu, Lakshadweep and Puducherry13 had not filed a single case under the PC&PNDT Act since 1994 despite all these States having districts targeted under the Beti Bachao Beti Padao, the flagship programme launched by the Prime Minister of India to arrest the falling CSR. Further, during the same period, no conviction was secured in nine states i.e. Andhra Pradesh, Chhattisgarh, Goa, Jharkhand, Karnataka, Tamil Nadu, Uttarakhand and West Bengal and UT of Chandigarh.
In order to improve implementation of the PCPNDT Act, in 2012, the Government of India amended Rule 3 of the Pre Natal Diagnostic (Techniques (Prohibition of Sex Selection) Rules, 1996. In 2014, the Government of India further brought the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Amendment Rules, 2014 (known as Six Months Training Rules) on 9th January, 2014 and the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Amendment Rules, 2014 on 31st January 2014 relating to “Form F” and the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Amendment Rules, 2014 relating to conduct for Advisory Committees.
Since these 2014 amendments to the PC&PNDT Rules and directions of the Supreme Court in VHAI Punjab case, the medical lobby and the radiologists have been up against the PC&PNDT Act and putting pressure on the Ministry of Health and Family Welfare. Further in 2014, Mumbai High Court in a series of judgments refused to interfere with the orders of Appropriate Authorities pertaining to cancellation or suspension of registration in Maharashtra including in Dr. Radhakrishna v. the State of Maharashtra, Dr. Vijaymala v. the State of Maharashtra, Dr. Vinayak v. the State of Maharashtra, Dr. Ravindra v. the State of Maharashtra19, Faijan Multi Speciality Hospital v. the State of Maharashtra,20 Dr. Dattatraya v. the State of Maharashtra, Dr. Sau Nirmala w/o Ramprasad Bajaj v. the State of Maharashtra. The opposition to the Act further gained momentum with the conviction and sentencing of a radiologist from Pune, Maharashtra to one year imprisonment for failing to maintain records as per the PC&PNDT Act in December 2015. The demands of the radiologists include: (i) clerical errors in Form F/not wearing of apron/non display of notice board/ not keeping hand book on the PC&PNDT Act should not be equated with sex determination and criminal offence; (ii) punishment should be graded; (iii) ultrasound machines should not be sealed and medical qualification should not be cancelled on minor clerical error; (iv) the Gazette notification dated 5th June 2012 regarding restriction on radiologists for visiting more than two ultrasound centre in a District/intimation of change of radiologists and equipment one month in advance should be de-notified or suitably amended; and (v) renewal of the PC&PNDT registration should not be denied until and unless case is proved in the court of law.
In March 2016, the Ministry of Health and Family Welfare invited suggestions/ comments to the proposed amendments to the PC&PNDT Amendment Bill. However, a cursory scrutiny of the proposed amendments shows that the proposed amendments reflect the demands of the medical lobby and radiologists.
In the proposed amendments to the PC&PNDT Act, the Ministry of Health and Family Welfare suggested amendment of Section 23(1) by replacing the phrase “who contravenes any of the provisions of this Act or Rules made thereunder” with “who indulges in or assists or aids Sex Determination/selection or for conducting pre-natal diagnostic techniques on any person for the purposes other than those specified in sub-section (2) of Section 4”.
The proposed amendment seeks to restrict the scope and operation of Section 23 (1) only to cases where the accused medical professional “indulges in or assists or aids sex determination/selection or for conducting pre-natal diagnostic techniques on any person for the purposes other than those specified in subsection (2) of Section 4” while the existing provision of Section 23 (1) covers contravention of “any of the provisions of this Act or Rules made thereunder”. In effect, the proposed amendment seeks to turn the burden of proof on the prosecutor in one hand and makes the standard of proof more stringent. Once the proposed amendment is allowed, the irregularities in record keeping as per Form “F” which are part and parcel of sex selective tests would escape the rigours of the existing Section 23 as the prosecutors shall have to prove indulgence in or assistance or aiding sex determination/selection or for conducting pre-natal diagnostic techniques by the accused medical professionals or diagnostic centers/ clinics. It is widely known and accepted that medical professionals or diagnostic centers/clinics when accused of conducting sex determination test including by suppression of the facts prescribed to be recorded, they take the alibi of clerical errors. But entry of wrong or imaginary names of pregnant women and addresses cannot be treated as clerical errors and these are done intentionally.
The Ministry of Health and Family Welfare also proposed amendment of Section 23 by inserting a new clause, Section 23(1)(A) prescribing only monetary penalty of maximum rupees ten thousand for not wearing apron, displaying board declaring not conducting sex selection and making available copy of the Act in the genetic clinics & USG centres26 instead of the penalty of “imprisonment for a term which may extend to three months” under the existing PC&PNDT Act. It is clear that the demands of the IMA and IRIA that any offence under Section 25 should not be a criminal offence are being effectively addressed by the Ministry of Health and Family Welfare.
The Comptroller and Auditor General (CAG) of India in its latest report, “Performance Audit on Empowerment of Women Government of Uttar Pradesh“, covering the financial year from 2010-2011 to 2014-2015 brought to fore gross anomalies in implementation of the PC&PNDT Act. The CAG has identified key problems in the implementation of the PC&PNDT Act as underutilization of funds, non-renewal of registration leading to automatic renewal of registration, non-maintenance of patients’ details and diagnostic records, non maintenance of records by the authorities, absence of regular inspection of ultrasonography (USG) centres, lack of documentation of inspection report, lack of mapping and regulation of USG equipment, lack of tracking system in USG machines, no training of medical practitioners conducting ultrasonography, missing of the seized USG machines, inadequate number of decoy operations, non-imposition of penalties, lack of regular meetings by authorities and insufficient inspections. The findings of the CAG in Uttar Pradesh are indicative of the situation across the country.
Despite such shortcoming, there are more reports of arrest of doctors for violations of the PC&PNDT Act. Sex selection is a multi-billion dollar industry That online search engines Microsoft, Google and Yahoo of violating the PC&PNDT Act hosted advertisements pertaining to pre-natal sex determination shows the scale and intensity of sex selection.
The falling CSR is a stark reality and the CSR is all set to fall further from 919 as per 2011 census. According to Sample Registration System Statistical Report-2013, the Sex Ratio at Birth (SRB) in the age group 0-4 for the country for the period 2011-2013 (3-years average) was estimated at 909. If under-five mortality rate of 48 deaths per 1,000 births in India is taken into account, the child sex ratio during 2011-2013 will be about 886 girls per thousand boys which is drastic fall from CSR of 919 during 2011 census.
If the PC&PNDT Act were to act as the deterrent to prevent further fall in the CSR as a result of sex selection, there is no doubt that sentencing should based on gravity of the offences. ACHR argues that non maintenance of records as per existing Form F ought to be treated as offences punishable with three months imprisonment while ultrasound machines and medical licenses should be seized or cancelled if Form F is not maintained. Further, punishment for sex selection leading to female foeticide under Sub-Section (1) of Section 23 and Section 25 of the PC&PNDT Act shall have to be punished with imprisonment of either description for a term which may extend to ten years, or with fine, or with both as provided under Section 315 and Section 316 of the IPC. Similarly, the contravention of the Act or any provision of the Rules will have to make offences financially disincentive.
Without the PC&PNDT Act, the sex ratio would have fallen far more drastically The CSR fell by 7 points from 1951 (983) to 1961 (976), 12 points from 1961 (976) to 1971 (964), 2 points from 1971 (964) to 1981 (962), 17 points from 1981 (962) to 1991 (945), 18 points from 1991 (945) to 2001 (927) and 9 points from 2001 (927) to 2011 (919). The highest fall in the CSR was recorded from 1981 to 1991 (17 points) and 1991-2001 (18 points) confirm beyond any reasonable doubt the misuse of technology for sex selection. Once the PC&PNDT Act was made a bit more stringent in 2003 as per the directions of the Supreme Court in CEHAT case, it appears to have had some deterrent effect and the CSR fell only by 9 points from 2001 to 2011. However, India can ignore the reality that in at least 24 panchayats of Una district of Himachal Pradesh, the CSR fell to below 500 and in two gram panchayats of Una, the sex ratio was 111 and 167 respectively at its own perils.
India also needs to get its act together to combat sex selection falling CSR of the girls. Currently, the PC&PNDT Act enacted to combat female foeticide is under the Ministry of Health and Family Welfare which by definition is conscious of the interest of the medical lobby. On the other hand, all the schemes for girl child are under the Ministry of Women and Child Development while birth registration is under the Ministry of Home Affairs. There is a clearly an absence of a nodal agency to address falling CSR.
In order to address female foeticide in India, Asian Centre for Human Rights recommends the following to the Government of India:
- Ensure effective implementation of the PC&PNDT Act in letter and spirit including through launching of pilot schemes on the implementation of the Act in the districts targeted under the Beti Bachao, Beti Padao scheme;
- Reject any further amendments of the PC&PNDT Act placed in March 2016 especially making non-maintenance of records punishable only with fine;
- Establish a Central nodal agency to combat female foeticide under the joint collaboration ofMinistry of Women and Child Development and Ministry of Health & Family Welfare by bringing (i) Increased accountability of the Appropriate Authorities of the PC&PNDT Act currently under the Ministry of Health and Family Welfare, (ii) incentivized schemes for retention of the girl child across all economic class currently under the Ministry of Women and Child Development, and (iii) Mandatory birth registration with a concentrated focus on girls currently under Ministry of Home Affairs under the administrative control of the nodal agency for effective combating of falling CSR;
- Use of Sex Ratio at Birth (SRB) by Registrar General of India should be taken annually instead of the CSR calculated every decade by RGI to identify districts having lowest child sex ratio and undertake effective implementation of the PC&PNDT Act; and
- Government of India should either incorporate/strengthen in the Beti Bachao Beti Padao Program or launch a specific scheme to provide financial assistance to families to retain/survival of the girl child irrespective of income of the parents and make the scheme attractive enough for retention/survival of the girl child.
