LEGAL FRAME WORK TO CONTROL THE FEMALE FOETICIDE

Legal frame work

The Constitution of India, 1950 has conferred equality of status and opportunities to all citizens, whether men or women, including the right to take birth. For the empowerment of women several provisions are made in the Constitution under Articles 14, 15, 39, 42, 51–A(e). Article 14 provides equality before law or equal protection of laws to all citizens within the territory of India. Article 15(1) directs the States not to discriminate against citizen on grounds only of religion, race, caste, sex and place of birth or any other. Article 15(3) provides that special treatment of women on account of the peculiar special position of women in India is justifiable and it is not violative of Article 15(1). Article 39(a) declares equal right for men and women to adequate means of livelihood. Article 39(d) provides for equal pay for equal work for both men and women. Article 42 enjoins a duty on the state to make provisions for securing just and human conditions of works and maternity relief for women. Article 51A(e) states that every citizen of India has a fundamental duty to renounce practices derogatory to the dignity of women.

In order to fulfill the Constitutional commitment, the legislature has enacted special laws for the welfare and well being of women in India. The laws include Dowry Prohibition Act, 1961; Indecent Representation of Women (Prohibition) Act, 1986; The Commission of Sati (Prevention) Act, 1987; The protection of Women from Domestic Violence Act, 2005; The Maternity Benefit Act, 1961; Special Marriage Act, 1954; The Equal Remuneration Act, 1976, The Medical Termination of Pregnancy Act, 1971; The Pre Natal Diagnostic Techniques (Regulation of Prevention of Misuse) Act, 1994; provisions of the Indian Penal Code 1860, etc.

3.1.  PROVISIONS UNDER INDIAN PENAL CODE

Sections 312 to 316 of Indian Penal Code regarding termination of pregnancy were enacted more than a century ago. They were drawn up in keeping with the then British Law on the subject. Abortion was a crime, for which the mother as well as the abortionist could be punished except where it had to be induced in order to save the life of the mother.

Causing a woman to miscarry, including by the woman herself, is punishable for imprisonment upto seven years.[1] Whoever commits miscarriage without the consent of the woman shall be punished with imprisonment for life or with imprisonment upto 10 years and fine.[2] Whoever before the birth of any child does any act with the intention of thereby preventing that child from being born alive or causing it to die after its birth and does by such act prevent that child from being born alive shall be punished for imprisonment upto 10 years or with fine or with both, if such an act is not caused in good faith for the purpose of saving the life of the mother.[3] The range of sentence, varying from a mere fine to imprisonment extending upto 10 years, is dictated by the varying criminality of the act. Whoever does any act under such circumstances that if he thereby caused death he would be guilty of culpable homicide, and does by such act cause the death of a quick unborn child, shall be punished with imprisonment of either description for a term, which may extend to 10 years and shall also be liable to fine.[4]

Sections 312 and 313 of Indian Penal Code declare causing of miscarriage a punishable offence. The only exception being that it had to be done in good faith for the purpose of saving the life of a woman. Apart from this, the liability is strict.

 The Britishers were so shocked with the ‘son fixation’ of Indians that they enacted the Infanticide Act in 1870. The law makers while enacting the provisions in Indian Penal Code were worried more about the possible misuse of law of abortion rather than having serious thought to curb foeticide. The sanctions however were not deterrent enough and people resorted to it clandestinely and as a result, maternal mortality rose considerably as abortions were done under unhygienic conditions by quacks. Taking note of this dismal state of affairs, the Central Family Planning Board persuaded the Central Government to appoint a committee known as Shantilal Shah Committee in 1964. The recommendations of this Committee culminated in the enactment of the Medical Termination of Pregnancy Act, 1971.

3.2.  THE MEDICAL TERMINATION OF PREGNANCY ACT, 1971

The MTP Act, 1971 was enacted with a view to curb the problem of population explosion and it modified the provisions of the Indian Penal Code, 1860, by legalizing abortions.

The MTP Act permits the termination of pregnancy by a registered Medical practitioner, where the length of pregnancy does not exceed 12 weeks or by two registered medical practitioners forming opinion together where the length of pregnancy exceeds 12 weeks but does not exceed 20 weeks, provided that the medical practitioner/ medical practitioners are of the opinion formed in good faith that

i]         the continuance of pregnancy would involve a risk to the life of the pregnant woman or an injury to her physical or mental health.

ii]        there is substantial risk if the child were born it would suffer from such physical or mental abnormalities, as to be seriously handicapped.

The MTP Act also provides two instances where continued pregnancy is assumed to constitute a grave injury to the mental health of pregnant woman namely;

a]         where pregnancy is the result of a rape

b]        where pregnancy occurs as a result of failure of any device by a married woman or her husband for the purpose of limiting the number of children.[5]

The provision provides the doctor with a yard stick for a broad interpretation of the basic concept of the potential injury to the mental health of the pregnant woman. This provision in its implementation means abortion on demand. Section 312 of Indian Penal Code, 1860, permitted abortions by anyone with the object of saving the life of mother, but under MTP Act only a doctor can terminate pregnancy.

Thus MTP Act grants wide discretion to doctors in implementing its provisions. Section 8 of the MTP Act, 1971, protects the doctors by providing that no suits or other legal proceedings shall lie against any doctor for any damage caused or likely to be caused by anything which is done or intended to be done in good faith under MTP Act. The doctor is required to base his opinion on a variety of complex, medical, humanitarian, socio economic and moral consideration. With increase in abortion on demand, the prospect of commercialisation of abortion of medical practitioner have increased.

The MTP Rules as revised by the Government of India in 1975 have made it competent for a woman to have her unwanted pregnancy terminated under the Act on the certificate of physician. She can avail herself of this legal facility in any Government hospital or a Government approved medical termination of pregnancy centre by simply filling a form under her signature, in case her pregnancy posed a threat to her physical or mental health.[6] Under the MTP rules, only the consent of pregnant woman is mandatory.

The rules made under the Act, relieve the doctors of responsibility or accountability as there is a form in which they have only to tick the reasons for abortion. No further details are required like what type of injury to mental or physical health of the mother could be caused if the pregnancy was not terminated or what risk or abnormality in the child was apprehended or what was the device or method of family planning adopted and which failed resulting in unwanted pregnancy and so on.

Sex detection tests started in India in the mid seventies. The partial ban on sex determination tests in Government hospitals led to the proliferation of private clinics / hospitals offering the facility. The ban was imposed because the advent of amniocentesis in 1975 caused a dramatic increase in female foeticide cases.

The first clinic to perform these tests was inaugurated in 1977. Another centre around the same time opened in Amritsar. A survey was conducted in Bombay and it was found that 85 percent of the gynecologists performed amniocentesis only for sex selection. A private clinic in Bombay during 1984-85 had performed 15,914 abortions and 99 per cent of them were female fetuses. There were similar distressing reports from other parts of the country as well.[7]

Different parts of the country have witnessed several campaigns against the misuse of science and technology to continue discrimination against women. Campaigns like Forum Against Sex Determination and Sex Pre-Selection [FASDSP] in 1985 in Maharashtra and Campaign Against Sex Selective Abortion [CASSA] in Tamil Nadu came up. FASDSP lobbied to regulate the practice of sex determination in Maharastra by modifying the Medical Termination of Pregnancy Act, 1971, that had the danger of cultivating women`s right to abort. As a result, the Maharashtra Regulation of use of Prenatal Diagnostic Techniques Act, 1988, came into being.[8]

A survey conducted in 1992 even in cosmopolitan Bombay revealed that 7,999 out of 8,000 aborted fetuses were female.  It was reported in a national daily that as many as 50,000 female foetuses are aborted every year after such tests. In Delhi alone there were 2,000 clinics conducting sex determination tests and 70% of all abortions in capital were female foeticide.

Serious drawbacks in the state legislation and poor implementation caused the awakening of interest in this issue across the entire country. A move for an all India ban on sex determination test gained momentum and the “The Pre natal Dianostic Techniques (Regulation and Prevention of Misuse0 Bill, 1991 was tabled in Lok Sabha. The Lok Sabha after discussion adopted a motion for reference of the Bill to a Joint Committee of both the Houses of Parliament in September, 1991. The Joint Committee presented its report in December, 1992 and on the basis of the recommendation of the Committee, the Bill was considered by both the Houses of Parliament and enacted into a legislation in 1994.

3.3. THE PRE-NATAL DIAGNOSTIC TECHNIQUES (REGULATION AND PREVENTION OF MISUSE) ACT, 1994

The Act provided for regulation of use of pre natal diagnostic techniques for the purpose of detecting genetic or metabolic disorders or chromosomal abnormalities or certain cogenital malformations and for the prevention of misuse of such technology for the purpose of pre natal sex determination leading to female foeticide. The Act also provided for constitution of Central Supervisory Board to advise Government on Policy. It also laid down the code of conduct to be observed by person working at the Genetic Counselling Center, Genetic Laboratories and Genetic Clinics. Appointment of appropriate authorities, their functions and punitive actions in case of contravention of provisions were also provided under the Act.

Though the PNDT Act came into force in January, 1996, no evidence of decline in the practice of female foeticide was evident even after four years. Lack of concern and political will to implement the legislation by the Centre and States led to a Public Interest Litigation before the Supreme Court filed by Dr. Sabu George [social activist] and Centre for the Enquiry of Health and Allied Themes [CEHAT] Mumbai in February, 2000. In May, 2001, the Supreme Court directed the centre to implement the PNDT Act in all its aspects and called upon all State Governments to take necessary steps to implement the Act.[9]

Subsequently, the Government of India and the States took steps to implement the Act. Over 20,000 clinics were registered in the first two years, 2001 -2003 [as opposed to 600 when the petition was filed in 2000]. More than 500 unregistered machines were seized as directed by the Supreme Court as doctors were refusing to register their pre natal clinics. Several hundred cases were filed for other violations of the Act.[10]

In the light of new techniques available to determine sex before conception and the directions of the Supreme court, it was felt necessary to amend the Act. With the result, the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of sex selection) Act, 1994 was brought into effect with passage of amendment bill in December, 2002.

3.4. THE PRE-CONCEPTION AND PRE-NATAL DIAGNOSTIC TECHNIQUES (PROHIBITION OF SEX SELECTION) ACT, 1994.

Salient features of the Act include:

·        Sex selection: Pre and post conception [sperm and embryo methods] are included.

·        Ultrasound machines to be registered and records of scans to be maintained.

·        Mobile ultra sound machines will be regulated.

·        Constitute multi member state appropriate authorities [with representation from a women`s organization and a legal expert in addition to the existing medical person]

·        Appropriate authority vested with powers of a civil court.

·        Enhancement of penalties for violations of the Act.

·        Woman undergoing sex determination is presumed innocent.

Adoption of amendments harmonized our laws with the provisions of several international covenants like Convention on the Elimination of All forms of Discrimination 1979 and Convention on the Rights of the Child, 1989 which forbid all forms of discrimination against women in every stage of life, including pre-conceptional or pre-natal. It helped in part to mould public opinion and social attitudes in favour of girls. And also sent a powerful warning to the unethical practitioners who are abusing medical technology.

The Act has three mechanism:

i]         Prohibitory: It prohibits sex selection completely either before or after conception.

ii]        Regulatory: It regulates the use of prenatal diagnostic techniques for medical purposes and prevents its abuse.

iii]       Preventive: It provides for setting up of various bodies to look into the implementation of the Act.

The law tried to define the words ‘embryo’ as a developing human organism after fertilization till the end of eight weeks [56 days]. ‘Foetus’ has been defined as human organism during the period of its development beginning from 57^th day following fertilization or creation, but it does not include the period which was spent towards its development and ending at the birth. ‘Sex selection’ means any procedure, techniques, test or administration or prescription or provision of anything for the purpose of ensuring or increasing the probability that an embryo will be of a particular sex.[11]

The law requires to regulate the functioning of:

i]         Genetic counseling centres

ii]        Genetic clinics.

iii]       Genetic laboratories such as institutions either in hospitals, nursing homes or otherwise at any place where such tests are done or conducted. Law requires the regulation of the working of the following persons, technicians or doctors; gynecologists, pediatricians, sinologists, imaging specialists, scanners, medical practitioners, etc..

Section 4 (3) of the Act enumerates certain conditions wherein only prenatal diagnostic techniques could be used and they are:

i]         Age of the pregnant woman is above 35 years;

ii]        Pregnant woman has undergone 2 or more abortions or foetal loss;

iii]       Pregnant woman has been exposed to tetratogenic agents such as  drugs, infections or chemicals;

iv]       Pregnant woman has a family history of mental retardation or physical deformities such a spasticity or any other genetic diseases;

v]        Any other condition as may be specified by the Central Advisory Board.

Sections 5 and 6 of the Act prohibit the determination of sex of a foetus or sex selection before or after conception. During investigation of genetic disorders, though the doctors come to know the sex of the foetus, the Act prohibits them from communicating the sex of foetus in any form, by words, sign or in any other manner. A clinic rendering these facilities has to be compulsorily registered. The Act read with the Rules provides for minimum requirements that have to be fulfilled before registration. Clinics which do not necessarily cater to pregnant women but nevertheless have ultra sound machines, would also have be registered under the PNDT Act since these clinics are prone to abuse. The Act also provides for registration of vehicles which have portable ultra sound machines. The machine can be operated in the registered vehicle only.[12]

The Act provides for 3 kinds of implementing bodies:

1]        Policy making bodies:

a] Central supervisory body

b] State Supervisory body

2]        Implementing authorities

3]        Advisory bodies

The role of Central as well as State Supervisory Body is to advise the Central and the State Government, respectively, on policy matters relating to the use and misuse of prenatal diagnostic techniques, to review and monitor the implementation of the Act, to recommend changes in the Act and Rules and to create public awareness against female foeticide. The Central Government is to appoint an authority for the Union Territories and the Government for the States to implement provisions of the Act.

The implementing authority is vested with the power to grant, suspend or change the registration of a unit, to enforce standards prescribed for a registered unit, to investigate complaints of abuse of technology, to take legal action against the same either suo motto or on a complaint, to seek and consider the advice of the advisory committee and to create public awareness on the issue. An appeal lies from the decision of the district and sub district authorities to higher appropriate authorities. This procedure of appeal must be exhausted before preferring an appeal to a judicial court.[13]

The Central or State Governments are bound under the Act to constitute an advisory committee for the union territories and States, respectively, consisting of 3 medical experts from amongst gynecologists, obstertricians, paediatricians and medical geneticists, one legal expert, one public relation officer and 3 eminent social workers of whom atleast one shall be from among the women`s organizations. It is an inbuilt mechanism devised by the legislature to keep the provisions of the Act in constant contact with social factors. This blending of the law with medicine helps a lot to gauge the societal reaction to the functioning of the Act. The range of powers conferred on this authority is indicative of the intention of the legislature in making the provisions effective. They have the power to effect search and seizure and impose penalties and punishment on erring medicos.

Chapter VII of the Act is very important from enforcement point of view. Advertisement relating to prenatal determination of sex is prohibited.[14] Offences and penalties for an Act in contravention of provisions of the Act are given in Section 23 of the Act. Punishment upto 3 years imprisonment and with fine upto Rs.10,000 can be awarded to offenders under the Act. Enhanced punishment upto 5 years imprisonment with fine upto Rs.50,000/- can be awarded on any subsequent conviction.

Following features of the Act require mention:

i]         Section 24 of Act provides for presumption against the husband or the relatives of the pregnant woman for compelling her to undergo prenatal diagnostic technique and such person shall be liable for abetment of offence under section 23 (3) of the Act.

ii]        Section 25 of the Act prescribes penalty for contravention of the provision of the Act or rules for which no specific punishment in provided.

iii]       In case of an offence under the Act has been committed by a company, every person who, at the time the offence was committed, was incharge of and was responsible to the company for conduct of business of the company, as well as company shall be deemed to be guilty of the offence and punished accordingly.[15]

3.4.1. COGNIZANCE OF OFFENCE

Every offence under the Act, is cognizable, non-bailable and non- compoundable offence.[16] No court shall take cognizance of an offence under this Act except on a complaint made by –

[a]       the appropriate authority concerned or any officer authorized in this behalf by the Central Government or State Government, as the case may be or the appropriate authority or

[b]       a person who has given notice of not less than 15 days in the manner prescribed to the Appropriate Authority, of the alleged offence and of his intention to make a complaint to Court. For the purpose of this clause “person” includes a social organization.

Sections 27 and 28 qua reporting the offence to the court taking cognizance appear to be ambiguous and contradictory. The Court cannot take cognizance of offence on a police report, although the offence is cognizable except as provided under section 28 of the Act.

3.4.2. PROCEDURE FOR PROSECUTION

A complaint can be registered with the Appropriate Authority, the Chief Medical Officer at District level and Director, Health Services at State level or any other notified authority in whose jurisdiction the offence has been committed. If within 30 days of filing the complaint the Appropriate Authority does not act, the complainant can make a complaint directly to a Court of law. This complaint can be filed in the Court of Metropolitan Magistrate or Judicial Magistrate 1^st Class, in the District.

On receipt of complaint, Chief Medical Officer or any other notified authority will make an independent inquiry, conduct an investigation in the matter and make a formal complaint in the Court. Appropriate Authorities can carry out searches and seizures under section 30(2) if he believes or has reasons to believe that an offence under the Act is being committed.

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[1]     Section 312 Indian Penal Code 1860.

[2]     Section 313 Indian Penal Code 1860.

[3]     Section 315 Indian Penal Code 1860.

[4]     Section 316 Indian Penal Code 1860.

[5]     Section 3 Explanation 2 of The Medical Termination of Pregnancy Act, 1971

[6]     Section 3(2)(b)(i) The Medical Termination of Pregnancy Act, 1971.

[7]     G. S Jaiswal, “Foeticide : The Concept and The law”, Social Welfare.

[8]     A Socio – Cultural Study of The Declining sex ratio in Delhi & Haryana, Report 2008, published by National Institute Of Public Cooperation & Child Development.

[9]     CEHAT & Ors v. UOI & Ors. (2001) 5 SCC 577.

[10]    Sabu George, “Sex Selection as Genocide”, Undoing Our Future –A Report on Status of Young Child in India, 1^st ed., Printed by Bibliophile South Asia, Sarvodaya Enclave, 2009.

[11]    Section 2(o) The Pre-Conception and Pre Natal Diagnostic Techniques (prohibition of Sex Selection) Act, 1994.

[12]    Explanation to Section 2(d) The Pre-Conception and Pre Natal Diagnostic Techniques (prohibition of Sex Selection) Act, 1994.

[13]    Jyoti Dogra Sood & K.N. Chandrashekaran Pillai, “Female Foeticide in India”, (The National University of  Advance Legal Studies)NUALS Law Journal, 2008, 1 at 7.

[14]    Section 22 The Pre-Conception and Pre Natal Diagnostic Techniques (prohibition of Sex Selection) Act, 1994..

[15]    Section 26 The Pre-Conception and Pre Natal Diagnostic Techniques (prohibition of Sex Selection) Act, 1994.

[16]    Section 27 The Pre-Conception and Pre Natal Diagnostic Techniques (prohibition of Sex Selection) Act, 1994.