ABSTRACT
From the centuries, India has been a well known figure for innumerable superstitions which,as time passes, proves itself to be more ridiculous. One such superstition existed was that abirth of female child brings up the bad luck to the family, which simultaneously leads to thefemale foeticide for decades. The worst part is that in many inner parts of Indian villages stillpractices female foeticides, which consequently resulted in the colossal difference in sexratios.
Apart from considering female foeticide as a social evil, it has been high time to address thisgrave issue in a legal and judicial manner. Despite of various statutory and legal provisionsexists which seeks to prevent this issue, there persists various loopholes in such a way thatweakens the very aspect such provisions. Take the case of Preconception and PrenatalDiagnostic Techniques Act which was modified in 2003 ; it targeted the ‘supply side’ of thepractice of sex selection in medical profession, but it fails due to its non-implementation.Similarly if there is an act to penalise the medical practitioners who involves in femalefoeticide, there lacks the provisions to regulate the unethical medical profession of foetal sexdetermination and sex selective abortion.
My paper mainly focuses on the existing legal framework to curb the menace of femalefoeticide. It further looks on effectiveness of its implementation and how judiciary takes itsstance on this issue. It also studies on government initiatives taken to prevent female foeticidein various parts of the country. The paper concludes on my opinion and analysis of thecurrent scenario existing on this particular aspect of female foeticide.
INTRODUCTION
In the country where the patriarchal society dominates its utmost, a girl child is the victim of all preposterous superstitions which is roaming over the country. While some presumes that the girl child is an omen of curse, others presumes it to be a crime. When advances in science and technology is praised to be a boon to development, it paves the way to the oppression of women at the same time. Prenatal Sex Determination followed by the female foetus abortion is an example for this.
The Statistical reports says that nearly 10 million female foetuses has been aborted for past two decades. According to the 2011 Census the child sex ratio is 914:1000 and therefore it is evident from these figures that the impact and implementation of the Act is still in doubt as there has been a continuous fall in the child sex ratio[1]. This clearly indicates that despite of the strict prohibition laws regarding sex determination laws are passed, female foeticide still continues to be a ravaging evil in our country. In 1994, India Has passed the Pre- conception and Prenatal Sex Diagnostic Techniques ( prohibition of Sex Selection) Act with the aim of lowering female foeticide: but they prove to be futile, as they were bereft of their Implementation. It was Later amended and replaced in 2002 by the Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act , but it also fails to achieve its objective.
The constitutional validity of the Acts passed by the parliament to reduce the female Foeticide for curbing the menace of the sexdetermination has been challenged in courts alleging violation of Article 21. The Judiciary has taken various stances on this issues, by validating the application of these acts. The Judiciary has even observed the year 2007 as “ The Awareness year of female foeticide” and stressed on the eradication of female foeticide and thus ensuring the balance in the gender ratio of our country.
PREVALENT LEGAL FRAMEWORK IN INDIA FOR PREVENTION OF FEMALE FOETICIDE.
Prior to the passage of the Medical Termination of Pregnancy Act, 1971, termination of pregnancy was an offence under the Indian Penal Code (hereinafter referred to as the “Code”), framed in 1860 in acco0rdance with the nineteenth century British Law[2]. Section 312[3] of the Indian Penal code, legalises the abortion of a child only if it poses the danger to the Mother’s life, provided that such act should be done in “good faith”. Here, the Act of good faith prevails over the threat to life, thus creating the fallacy in law. People might escape the penalty of this penal provision by putting forward the defence of “act Of Good faith”, since threat of life is not imminent here.
Nowhere in Indian legislation has enumerated the ‘right to Abortion’ to women, unlike US, Canada, and Europe which legalises this right on the request of the concerned women. According to MTP Act 1994, only upon the fulfilment of necessary conditions, according to the opinion of registered medical practitioners , are allowed to proceed to abortion[4]. Section 4 of the Act provides for the rigorous punishment of 2-7 years for terminating the pregnancy at any other place other than the approved place. In exercise of the powers conferred by Sec. 6 of the MTP Act, the Central Government made the Medical Termination of Pregnancy Rules, 2003[5]. The rules provide for the experience or training of a registered medical practitioner, approval of a place for the purposes of termination of pregnancy, inspection of a place, cancellation, or suspension of certificate of approval, and review[6].
Our Government first approved the Pre-natal Diagnostic Techniques and referred it as a vital pillar of women sexual and reproductive health and rights, but the use of these technologies needs a constant watch because sex selection was becoming common amongst various groups of people[7]. In order to stop female feticide and declining the sex ratio, the parliament passed the Preconception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act 1994 and amended from time to time to have effective implementation of the act and misuse of the parental diagnostic techniques for sex selection[8]. The Preconception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, places a ban on prenatal diagnostic techniques. But, it doesn’t mean that ‘all’ prenatal diagnostic techniques are banned. Further, it punishes women who indulge in the sex determination activities[9] ( any women who undergoes compulsion for diagnosis are excluded)[10]. It leads to the double penalisation for women. The Prenatal diagnostic devices only are being banned from the Sex determination[11]. They can be utilised for the purposes like figuring out genetic abnormalities, etc. The provision might have the chance of getting misused by this drawback and hence couples might get the chance to determine the sex of the child, which leads to the female foeticide. Therefore, the Strict Implementation and ambiguity is required for the penalty Structure of the Act for the misuse of Section 4(2).
- JUDICIAL STANCE ON FEMALE FOETICIDE.
The Indian Judiciary plays a land mark role and criticises the Act of Female foeticide as the most derisive act. In the case of Ajith savant Majagvai V State of Karnataka[12] The court held that “it is unfortunate that in an age where people are described as civilized, crime against female is committed even when the child in the womb as the female foetus is often destroyed to prevent the birth of a female child. If that child comes into existence, she starts her life as daughter, then becomes a wife and in due course, a mother. She rocks the cradle to rear up her infant, bestows all her love on the child and as the child grows in age, she gives to the child all that she has in her own personality. She shapes the destiny and character of the child. To be cruel to such a creature in unthinkable. To torment a wife can only be described as the most hated and derisive act of a human being.” In M.C. Mehatha V State of Tamil Nadu[13] and others [10] a three judge bench, while dealing with the magnitude of the problem in engagement of the child labour in various hazardous factories or mines, commenced the judgment thus, when the female foeticide takes place every women who mothers the child must remember that she is killing her own child despite being a mother that is what abortion would mean in social terms. Abortion of female child in its conceptual eventuality leads to killing of women.”
Certain Petitions were also filed in Courts Challenging the constitutional Validity of Preventing Sex Determination. In the case of Vinod Soni and Anr. v. Union of India[14], One of the Argument advanced by the petitioners was that preventing the right of a person/couple to have Sex determination and to grow the Off-spring of their choice is violative of Article 21 of the constitution, i.e., Right to Personal Liberty. It was contended by the petitioners, who were married couple that they had the right to undergo any such test to determine the sex of the child. The High court criticised the Argument stating that “right to personal liberty cannot be expanded by any stretch of imagination to liberty to prohibit to coming into existence of a female or male foetus which shall be for the nature to decide.” After making reference to the decisions of the Supreme Court, which explain that Article 21 includes the right to food, clothing, decent environment and even protection of cultural heritage, 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 right to selection of sex, whether preconception or post-conception.” It was observed by the High Court that “this Act is factually enacted to further the right of the child to full development as given under Article 21. A child conceived is, therefore, entitled under Article 21 to full development, whatever be the sex of that child.” Accordingly High Court dismissed the Petition by holding that it does not even make a prima facie case for violation of Article 21 of the Constitution[15].
In the case of Kharak Singh Vs. State of U.P. and others[16], had took the entire different decision regarding the interpretation of Article 21 from the viewpoint of right5 to privacy. It said that the person has the complete rights of control over the body organs , which also includes the female reproductive part under Article 21. If the right to privacy means anything, it is the right of the individual, married or single, to be free from unwanted governmental intrusion into matters so fundamentally affecting a person as the decision to bear or beget a child[17].
In Mr. Vijay Sharma and Mrs. Kirti Vs. Union of India[18], the Hon’ble Bombay High Court has held that Section 4 of Preconception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act 1994, which provides for the regulation of prenatal diagnostic technique is not violative of Section 14 of the Indian constitution. It was held that the techniques which were specified in Section 4 are to be used for determining the Genetic Abnormalities and totally restricts the Use of the techniques for Prenatal sex determination to the couple who are desirous to have a male child, even after the birth of the female child.
In the case Dr. Varsha Gautam W/O Dr. Rajesh Gautam vs State Of U.P[19], A pregnant woman wanted to get her abortion done because there was a girl child in her womb. She approached the petitioner Dr. Varsha Gautam at her hospital, who agreed to perform the abortion although it was an offence to perform such an operation and even determination of the sex by doctors using ultrasound technique was illegal. The petitioner is said to have engaged in getting abortions done in her hospital in collusion with doctors, who determined the sex of the foetus by conducting ultrasound tests. Her clinic was not even registered under the Act and she was not entitled to conduct pre-natal diagnostic procedures therein[20].
By analysing the above cases, we can say that judiciary had played its role best in curbing and tackling this issue of female foeticide. It had interpreted its views in various case laws that female foeticide is great menace faced by the country, and in order to get rid of them, the precedents of the above cases can be referred. Concerning with Gender ratio issues, the court had upheld the constitutional validity of the prenatal sex determination prevention, by infusing its legality in the literary interpretation of the statute.
- POLICY FRAMEWORKS TO CURB FEMALE FOETICIDE
Various policy frameworks have been initiated by the government for the protection of the girl child and to strike the balance in the gender Ratio. In the year 1992, a National Plan of Action exclusively for the girl child (1991-2000) was formulated for the survival and the protection of the girl child. The Plan recognised the rights of the girlchild to equal opportunity, to be free from hunger, illiteracy, ignorance and exploitation[21].One of the objectives for this Action plan was prevention of the female foeticide and infanticide and ban the practice of amniocentesis for the sex determination.
In 1997, the Central Government has launched the Balika Samriddhi Yojana in order to improvise and increase the status of the girl child. It aimed at providing Rs.500 to the mothers of the girl child as a gift from the government. This in fact encourages the families to bring up the girl child and above 25 Lakh girl child is supposed to get benefit under this scheme.
Although there are appropriate legislation to condense and the eradicate the female foeticide, such legislation wouldn’t be able to furnish its objective without the co-existence of other complimentary laws related to the protection of women such as Dowry Prohibition Act, 1961(Amended in 1986), Hindu Marriage Act, 1955, Hindu Adoption and Maintenance Act, 1956, Immoral Traffic Prevention Act, 1986 Equal Remuneration Act, 1976 etc. The effective implementation of these adequate women empowering legislation would subsequently increase the status of the women in society and hence helps to lower the instances of female foeticide.
In 2008, The Central Government has launched the Dhan Laxmi scheme, in the more educationally Backward States such as Andhra Pradesh, Chhattisgarh, Orissa, Jharkhand, Bihar, Uttar Pradesh, Punjab and all the other states who has higher number of BPL families[22].
Various Initiatives have been also taken by the State government to tackle this issue of female foeticide. In Punjab, there are some categories of families who believes in the strategy of producing offspring’s till they deliver the Male child. In order to overcome this abominable strategic belief, the Punjab Government has launched Kanya Jagriti Jyoti Scheme in 1996, which aimed to restrict the family size and to promote the higher education of the girl child. The scheme mainly targeted the BPL families who have at least one girl child.
In 2008, The Government of Bihar has launched the Mukhyamantri Kanya Suraksha Yojana and Mukhyamantri Kanya Vivah Yojana to curb the prejudice against the Girl child by providing the lumpsum of sum to the families who have Girl Children.
Government of India has introduced the Beti Bachao Beti Padhao (BBBP) scheme for survival, protection & education of girl child. It aims to address the issue of declining Child Sex Ratio (CSR) through a mass campaign across the country targeted at changing societal mindsets and creating awareness about the criticality of the issue. It is a joint initiative of Ministry of Women and Child Development, Ministry of Health & Family Welfare and Ministry of Human Resource Development[23]. Under this scheme, the Ministry of Health And Family Welfare had decided to Monitor for effective implementation of Pre-Conception and Pre-Natal Diagnostic Techniques (PC&PNDT) Act, 1994. It includes strengthening PNDT Cells and setting up monitoring committees; Increase institutional deliveries; Promoting registration of births.
- AWARENESS SCHEMES RELATED TO FEMALE FOETICIDE PROVIDED BY MEDIA AND MISCALLANEOUS ORGANISATIONS.
The Implementation of various schemes to increase the status of female child is a complimentary encouragement for the parents to discard their superstitious belief on female child. However, implementation of these schemes would not achieve its target unless they reach to the needy and deserved people. Media, Being the fourth pillar of the democracy, can be regarded as the vigorous communication source which outreach the needy people. Satyamev Jayate, a Television chat show hosted by the actor Amir Khan, helped in generation of wide spread awareness about the ill practise of female foeticide and infanticide. The show was telecasted across Star Network and Door darshan (State run television channel). For the sake of building viewership this first episode was aired again separately for large audiences in villages. Through the show the host brought forward stories from across various regions and classes of the country[24].
Indian Medical Association (IMA) has engaged famous cricketer Sunil Gavaskar as the ambassador for the Save the Girl Child campaign. Different branches of the IMA have worked at ground level to spread awareness. Pune IMA executed the Project Sukanya along with Pune Municipal Corporation[25].
In June 2012, The Information and Communication Bureau had an awareness drive for Padhanpur Pilgrims. Close to three lakh pilgrims traveling from Pune to the holy place of Padhanpur, Maharashtra, became the audience for a series of social messages regarding saving the girl child. Pamphlets, booklets containing educational messages against female foeticide were distributed. A short film, promoting the message of acceptance of girl child was, was repeated aired. The film also had actors Sachin Pilgaonkar and Supriya Pilgaonkar, brand ambassador for the cause declared by Maharashtra Government, requesting the audience to accept and spread the message[26].
Population first is a Nongovernmental Organisation (NGO) working for health and social developmental issues for the general population with specific focus on women. Over the years the NGO has undertaken many initiatives for generating awareness about female foeticide. They have tried to spread awareness through youth, community members, medical fraternity, media and opinion leaders[27].
On March 2012, Dainik Bhaskar, a vernacular media house, conducted an extensive educational campaign against female foeticide. The ‘Beti Bachao Muhim’ executed series of editorial articles, public rallies to activate public in general for the cause, interactive activities across 40 centres in Punjab and Haryana. A public march held which saw more than 3 lakh people participating across the two states[28].
- CONCLUSION – OVERALL ANALYSIS REGARDING FEMALE FOETICIDE IN INDIA.
Female foeticide is not only a factor of mere superstitions, but also is a product which has been derived from various economic inequalities which is prevalent in our country. There are some instances which shows that Female foeticide arises due to the reasons other than that of unscrupulous superstitions. Although India is trying to achieve the target of eradicating poverty, many regions as well as the states have the families which are below the poverty line. It can be seen that those parents who are below the poverty line are tempted to conduct the female foeticide on the fair reason that they could not afford the expenses of girl child. This can be clearly evidenced by observing the poverty hit states and the states which tops in conducting the female infanticide. For example, Jharkhand, Madhya Pradesh, Bihar, Haryana, tops the poverty list and female foeticide and infanticide list Simultaneously. So, the concerned State Government have the responsibility of intensifying the criminalisation of female foeticide through implementing the strict penal provisions.
Judiciary had casted its opinion that the act of female foeticide is the most derisive act of the Human Being. It also criticises the people’s disruptive belief that the girls child is a curse to the family. It is irony that the people instead of thinking that the girl child is the source of existence of the human being the people are thinking vice versa. Also Judiciary had emphasised That Precedents can only be the source or substance to prevention of this social evil, unless the society develops an attitude to accept the girl child as a boon rather than the curse, and thus ending the era of female foeticide.
There are still some areas deep inside the villages where female foeticide is considered as an cultural custom, just like Sati. They will not go for the sex determination purposes, as they have an expert regarding such determination among their community itself. What the law says and interprets never become their concern, as they are unaware of what’s happening outside and they don’t know the importance of such laws. This is the outcome of sheer ignorance pf these societies from the part of the government. One of the factor which the societies like this stick into such customs is the illiteracy. As long as the government ignores them, the more such practices are encouraged and hence the equal gender ratio in India would be an Utopian dream. So the government is required to address the issue and commit into the education policies to sweep out their illiteracy. Various awareness campaigns regarding female foeticides can be done, especially focusing these inner communities.
The flaws and ambiguities regarding some of the provisions in the sex-determination laws , such as PNDT Act, MTP Act should be rectified through amendments. Amendments are required in any legislation before it’s objectives get ousted. Implementation is the another concern here. Without the strong implementation measures, the amendments would become futile. So the amendments must also include stringent procedure for implementation by infusing the strict measures of penalties.
After all, it is upon the hands of the society to clear up this menace, if they only realise that the female foeticide is a core reason for existing gender ratio inconsistency in our country.
[1] Chaudhuri R.N& Pal I., Gender Inequality While Rearing of Children Under 5 years in Rural Area of West Bengal,32 IJCM, 215, 216-217(2007).
[2] Pankaj Choudhary, Female foeticides in India: Contextualizing legal framework, https://www.cultureinexternalrelations.eu/cier-data/uploads/2017/03/project-3.pdf.
[3] Sec.312, The Indian Penal Code, 1860, No.45, Acts of parliament, 1860 (India).
[4] Sec. 3, The Medical Termination of Pregnancy Act, 1971, No.34, Act of Parliament, 1971(India).
[5] Sec.3 (i),The Medical Termination Of Pregnancy Rules, 1975,repealed except as resects things done or omitted to be done before such repeal.
[6] PANKAJ,supranote 2.
[7]MADHUSOODHANTRIPATHI, FEMALE FOETICIDE IN INDIA: A HARSH REALITY,( 1st ed. 2011).
[8]Emandi Rangarao,Felony of female Foeticide – Role of judiciary in implementation of PCPNDT, act in India,2 IJL, 31, 32-33(2016).
[9] Sec. 3, The Preconception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, No. 57, Act Of Parliament, 1994 (India).
[10] Sec. 4 , The Preconception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, No. 57, Act Of Parliament, 1994 (India).
[11] Sec. 4(2), The Preconception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, No. 57, Act Of Parliament, 1994 (India).
[12]Ajith savant Majagvai v. State of Karnataka, (1997) 7 S.C.C 110 (India).
[13]M.C. Mehta v. State of Tamil Nadu,A.I.R 1997 S.C 699 (India).
[14]Vinod Soni and Anr. v. Union of India 2005 Cri.LJ 3408 ( India).
[15] EMANDI, supranote 8.
[16]Kharak Singh v. State Of U.P. And Others, A.I.R 1964 SCR (1) 332 ( India).
[17] Missouri v. Danforth.,428 U.S. 52, (1976).
[18]Mr. Vijay Sharma and Mrs. Kirti v. Union of India, A.I.R 2008 Bom. 29 (India).
[19]Dr. Varsha Gautam W/O Dr. Rajesh Gautam v. State Of U.P ,Criminal Misc. Writ Petition No. 5086 of 2006(India).
[20]Shubhneet Inderjit Kaur,A Cry Still Unheard: The Menace Of Female Foeticide In India,LEGAL SERVICE INDIA.COM, http://www.legalservicesindia.com/article/607/A-Cry-Still-Unheard:-The-Menace-Of-Female-Foeticide-In-India.html.
[21]Sarala Gopalan & Vijay Bhaskar, Response of the Government to the Problems of the Girl Child,WOMENSTUDIES.IN, (Jul. 1998), http://www.womenstudies.in/elib/girl_child/gc_responses-of.pdf.
[22]Ashish Sadh &Payal S. Kapoor,Save the Girl Child Initiatives in India -A Social Marketing Perspective,4 ILJ, 21, 18-34 (2012).
[23]Steps taken by Government for survival, protection and education of Girl Child,PRESS INFORMATION BUREAU
GOVERNMENT OF INDIA MINISTRY OF WOMEN AND CHILD DEVELOPMENT ( Dec. 10, 2015, 6:24 PM), https://pib.gov.in/newsite/PrintRelease.aspx?relid=132980.
[24]Female Foeticide Episode 01: Daughters Are Precious, SATYAMEVJAYATE TV SERIES (May. 6, 2012), http://www.satyamevjayate.in/issue01/.
[25]Gavaskar Made Brand Ambassador of ‘Save The Girl Child’ Campaign,JAGARN POST,(Jun. 30, 2011), http://post.jagran.com/ gavaskar-made-brand-ambassador-of-save-the-girl-childcampaign-1309420731.
[26]Mascarenhas.A,Awareness Drive amid Pilgrimage, A New Experience for Devotees, THE INDIAN EXPRESS, (Jun. 24, 2012) from http:// www.indianexpress.com/news/awareness-drive-amidpilgrimage-a-new-experience-for-devotees/966075/1.
[27] ASHISH,supranote at 22.
[28]DainikBhaskar,Save the Girl Child Campaign in Punjab,Chandigarhand Haryana,MAXIM INDIA,(Sep. 8, 2012),http://www.mxmindia.com/2012/03/dainik-bhaskars-save-the-girlchild-campaign-in-punjabchandigarhand-haryana/.
