In the Supreme Court of India Writ Petition (Civil) No. 349 of 2006 Petitioner Voluntary Health Association of Punjab Respondents Union of India & Ors. Date of Judgement 22nd April , 2019 Bench Hon’ble Justice Dipak Misra; Justice K.S. Panicker Radhakrishnan
This case deals with Female foeticide and the misuse of the Pre-conception and Prenatal Diagnostic Techniques 1994 Act legislated by the state governments.
Female foeticide has its roots in the social paradigm of a society which is fundamentally based on certain erroneous notions and ego-centric traditions. This has till now not been eradicated and people from all sectors continue to indulge in this practice rendering some aspect of law and order ineffective.
The Pre-conception and Prenatal Diagnostic Techniques 1994 Act is touted to try and remove this very deeply embedded practice from the backward areas of the country and has to a certain extent been effective. It has tried to alter the pervert perception of societal norms, and obsession with ideas which are totally individualistic and against the collective good.
- The Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition on Sex-Selection) Act was enacted in 1994 by the Parliament of India as a measure to prevent female feticides and go in the direction of formulating a positive action for women/girls to end the discrimination against them. This has its roots in Article 15 of the Indian Constitution.
- However, in 2001 and 2003 the Supreme Court had noticed a lack of effective implementation/misuse of the Act and had issued directions to the legislature for its proper implementation.
Based on this the state governments with the help of the Health Secretariesobserved that the female child sex ratio had declined as per the 2011 Census.
It was then decided that steps will be taken to examine the hindrances which came in the way of effective implementation of the provisions of the Act as well as the various directions issued by the Court.
- It was then propounded by the court that women have the equal right of thinking, participating and becoming leaders in the society and said that the purpose of the Act can only be realized when government authorities realize this very ideology and channel theirs with a commitment to and awareness about the role of women in society. It then issued direct orders for its implementation.
Constitutional and Statutory provisions discussed:
- Pre-conception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994
The learned judges gave the following reasoning for their arguments and opined that-
- The state and the union territories need to adopt steps to educate the people of the necessity of the provision of the Act and mandate the establishment of workshops and awareness camps at the state and district levels
- The court stressed the intention of the legislation to prohibit sex selection before/ after conception and ordered for the regulation of prenatal diagnostic techniques which could -detect genetic abnormalities, metabolic disorders, chromosomal abnormalities, certain congenital malformations, or sex-linked disorders. It reiterated that punishment will be sought if these provisions are used for sex determination leading to female foeticide.
- The court directed that people who will be involved in the aforementioned awareness campaigns will be required to equip themselves with constitutional concepts, culture, philosophy, religion, scriptural commands and injunctions, mandates of law as per under the Act and be apprised of the development of modern science. Additionally, they must know the culture, philosophy, religion, scriptural commands, and legal injunctions. With the help of this knowledge, they were expected to inform people of the deterrent facets of law and inspire people to follow the law with a sense of spiritual obeisance.
The court suggested that that documentary films can be shown to highlight the need for the provision of female foeticide should be treated as a problem and realize that it needs a proper manner for a solution.
- It emphasized the term “child” and stated that a child is supposed to be welcomed in the world with pomp and show and if a female child is killed in the womb it will bring disaster to society.
- It stressed that a woman must be regarded as an equal partner in the life of a man and the social paradigm and is entitled to the activities of thinking, participating, and leadership. The legislature intended to provide for the prohibition of sex selection before or after conception and for the regulation of prenatal diagnostic techniques to detect all kinds of abnormalities to prevent its misuse.
- Purpose of enactment could only be actualized and its object fruitfully realized when authorities under the Act carry out their functions with devotion, dedication, and commitment.
- People involved in awareness campaigns should have boldness and courage and there should not be any iota of confusion or perplexity in their thought or action. They should bear in mind that they were required to change the mindset of people, the grammar of society, and unacceptable beliefs inherent in the populace.
- It has been observed that complete laxity by the authorities as well as sheer carelessness is responsible for the ineffective implementation of the Act. They have also failed to apprise the masses on the necessary social, cultural, and legal awareness that a female fetus cannot be killed without a specific command by law.
- The Court also reprimanded the actions of the involved doctors and medical practitioners who are unqualified and said that the present generation invites the sufferings on its own and also sows the seeds of suffering for the future generation. The result is ultimately the reduced sex ration which in turn leads to manifold social problems. It also stressed that no awareness campaign can ever be complete unless there is a real focus on the prowess of women and the need for women empowerment.[i]
This is one of the most important judgments to be delivered with respect to the position the court has given to women in society. The court effectively spelled out that female foeticide is the worst type of dehumanization of the human race and brought about the inequities, indignities, inequality, and discrimination faced by women.
This Judgment stays as an important precedent since it applies to a few important facets in legal jurisprudence which involves the question of women and their rights. The court has taken a very modern and philosophical approach which is commendable. However, the question still remains if this judgment will be implemented and the questions raised therein will be addressed and used where necessary so that the concept of an equitable society is met with and the atrocities against the girl child subside.
“The views of the authors are personal“
[i] Centre for Enquiry into Health and Allied Themes (CEHAT) and others v. Union of India and others (2001) 5 SCC 577 2001.