Voluntary Health Association of Punjab
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Reportable
IN THE SUPREME COURT OF INDIA
EXTRAORDINARY CIVIL WRIT JURISDICTION
WRIT PETITION (CIVIL) NO. 349 OF 2006
Voluntary Health Association of Punjab ..Petitioner
Versus
Union of India & Others .. Respondents
O R D E R
Indian society’s discrimination towards female child still exists due
to various reasons which has its roots in the social behaviour and
prejudices against the female child and, due to the evils of the dowry
system, still prevailing in the society, in spite of its prohibition under
the Dowry Prohibition Act. The decline in the female child ratio all over
the country leads to an irresistible conclusion that the practice of
eliminating female foetus by the use of pre-natal diagnostic techniques is
widely prevalent in this country. Complaints are many, where at least few
of the medical professionals do perform Sex Selective Abortion having full
knowledge that the sole reason for abortion is because it is a female
foetus. The provisions of the Medical Termination of Pregnancy Act, 1971
are also being consciously violated and misused.
The Parliament wanted to prevent the same and enacted the Pre-
Conception and Pre-Natal Diagnostic Techniques (Prohibition on Sex-
Selection) Act, 1994 (for short ‘the Act’) which has its roots in Article
15(2) of the Constitution of India. The Act is a welfare legislation. The
Parliament was fully conscious of the fact that the increasing imbalance
between men and women leads to increased crime against women, trafficking,
sexual assault, polygamy etc. Unfortunately, facts reveal that
perpetrators of the crime also belong to the educated middle class and
often they do not perceive the gravity of the crime.
This Court, as early as, in 2001 in Centre for Enquiry into Health and
Allied Themes v. Union of India (2001) 5 SCC 577 had noticed the misuse of
the Act and gave various directions for its proper implementation. Non-
compliance of various directions was noticed by this Court again in Centre
for Enquiry into Health and Allied Themes v. Union of India (2003) 8 SCC
398 and this Court gave various other directions.
Having noticed that those directions as well as the provisions of the
Act are not being properly implemented by the various States and Union
Territories, we passed an order on 8.1.2013 directing personal appearance
of the Health Secretaries of the States of Punjab, Haryana, NCT Delhi,
Rajasthan, Uttar Pradesh, Bihar and Maharashtra, to examine what steps they
have taken for the proper and effective implementation of the provisions of
the Act as well as the various directions issued by this Court.
We notice that, even though, the Union of India has constituted the
Central Supervisory Board and most of the States and Union Territories have
constituted State Supervisory Boards, Appropriate Authorities, Advisory
Committees etc. under the Act, but their functioning are far from
satisfactory.
2011 Census of India, published by the Office of the Registrar
General and Census Commissioner of India, would show a decline in female
child sex ratio in many States of India from 2001-2011. The Annual Report
on Registration of Births and Deaths - 2009, published by the Chief
Registrar of NCT of Delhi would also indicate a sharp decline in the female
sex ratio in almost all the Districts. Above statistics is an indication
that the provisions of the Act are not properly and effectively being
implemented. There has been no effective supervision or follow up action
so as to achieve the object and purpose of the Act. Mushrooming of various
Sonography Centres, Genetic Clinics, Genetic Counselling Centres, Genetic
Laboratories, Ultrasonic Clinics, Imaging Centres in almost all parts of
the country calls for more vigil and attention by the authorities under the
Act. But, unfortunately, their functioning is not being properly
monitored or supervised by the authorities under the Act or to find out
whether they are misusing the pre-natal diagnostic techniques for
determination of sex of foetus leading to foeticide.
The Union of India has filed an affidavit in September 2011 giving
the details of the prosecutions launched under the Act and the Pre-
Conception and Pre-Natal Diagnostic Techniques (Prohibition on Sex-
Selection) Rules, 1996 (for short ‘the Rules’), up to June 2011. We have
gone through the chart as well as the data made available by various
States, which depicts a sorry and an alarming state of affairs. Lack of
proper supervision and effective implementation of the Act by various
States, are clearly demonstrated by the details made available to this
Court. However, State of Maharashtra has comparatively a better track
record. Seldom, the ultrasound machines used for such sex determination in
violation of the provisions of the Act are seized and, even if seized, they
are being released to the violators of the law only to repeat the crime.
Hardly few cases end in conviction. Cases booked under the Act are pending
disposal for several years in many Courts in the country and nobody takes
any interest in their disposal and hence, seldom, those cases end in
conviction and sentences, a fact well known to the violators of law. Many
of the ultra-sonography clinics seldom maintain any record as per rules
and, in respect of the pregnant women, no records are kept for their
treatment and the provisions of the Act and the Rules are being violated
with impunity.
The Central Government vide GSR 80(E) dated 7.2.2002 issued a
notification amending the Act and regulating usage of mobile machines
capable of detecting the sex of the foetus, including portable ultrasonic
machines, except in cases to provide birth services to patients when used
within its registered premises as part of the Mobile Medical Unit offering
a bouquet or other medical and health services. The Central Government
also vide GSR 418(E) dated 4.6.2012 has notified an amendment by inserting
a new Rule 3.3(3) with an object to regulate illegal registrations of
medical practitioners in genetic clinics, and also amended Rule 5(1) by
increasing the application fee for registration of every genetic clinic,
genetic counselling centre, genetic laboratory, ultrasound clinic or
imaging centre and amended Rule 13 by providing that an advance notice by
any centre for intimation of every change in place, intimation of employees
and address. Many of the clinics are totally unaware of those amendments
and are carrying on the same practises. In such circumstances, the
following directions are given:
1. The Central Supervisory Board and the State and Union Territories
Supervisory Boards, constituted under Sections 7 and 16A of PN&PNDT
Act, would meet at least once in six months, so as to supervise and
oversee how effective is the implementation of the PN&PNDT Act.
2. The State Advisory Committees and District Advisory Committees should
gather information relating to the breach of the provisions of the
PN&PNDT Act and the Rules and take steps to seize records, seal
machines and institute legal proceedings, if they notice violation of
the provisions of the PN&PNDT Act.
3. The Committees mentioned above should report the details of the
charges framed and the conviction of the persons who have committed
the offence, to the State Medical Councils for proper action,
including suspension of the registration of the unit and cancellation
of licence to practice.
4. The authorities should ensure also that all Genetic Counselling
Centres, Genetic Laboratories and Genetic Clinics, Infertility
Clinics, Scan Centres etc. using pre-conception and pre-natal
diagnostic techniques and procedures should maintain all records and
all forms, required to be maintained under the Act and the Rules and
the duplicate copies of the same be sent to the concerned District
Authorities, in accordance with Rule 9(8) of the Rules.
5. States and District Advisory Boards should ensure that all
manufacturers and sellers of ultra-sonography machines do not sell any
machine to any unregistered centre, as provided under Rule 3-A and
disclose, on a quarterly basis, to the concerned State/Union Territory
and Central Government, a list of persons to whom the machines have
been sold, in accordance with Rule 3-A(2) of the Act.
6. There will be a direction to all Genetic Counselling Centres, Genetic
Laboratories, Clinics etc. to maintain forms A, E, H and other
Statutory forms provided under the Rules and if these forms are not
properly maintained, appropriate action should be taken by the
authorities concerned.
7. Steps should also be taken by the State Government and the authorities
under the Act for mapping of all registered and unregistered ultra-
sonography clinics, in three months time.
8. Steps should be taken by the State Governments and the Union
Territories to educate the people of the necessity of implementing the
provisions of the Act by conducting workshops as well as awareness
camps at the State and District levels.
9. Special Cell be constituted by the State Governments and the Union
Territories to monitor the progress of various cases pending in the
Courts under the Act and take steps for their early disposal.
10. The authorities concerned should take steps to seize the machines
which have been used illegally and contrary to the provisions of the
Act and the Rules thereunder and the seized machines can also be
confiscated under the provisions of the Code of Criminal Procedure and
be sold, in accordance with law.
11. The various Courts in this country should take steps to dispose of all
pending cases under the Act, within a period of six months.
Communicate this order to the Registrars of various High Courts, who
will take appropriate follow up action with due intimation to the
concerned Courts.
All the State Governments are directed to file a status report within
a period of three months from today.
Ordered accordingly.
.......................................
.....J.
(K. S. RADHAKRISHNAN)
New Delhi,
March 04, 2013.
IN THE SUPREME COURT OF INDIA
EXTRAORDINARY CIVIL WRIT JURISDICTION
WRIT PETITION (CIVIL) NO. 349 OF 2006
Voluntary Health Association of Punjab ... Petitioner
Versus
Union of India and others ... Respondents
O R D E R
Dipak Misra, J.
I respectfully concur with the delineation and the directions
enumerated in seriatim by my respected learned Brother. However, regard
being had to the signification of the issue, the magnitude of the problem
in praesenti, and the colossal cataclysm that can visit this country in
future unless apposite awareness is spread, I intend to add something
pertaining to the direction No. (8).
2. To have a comprehensive view I think it seemly to reproduce the said
direction: -
“8. Steps should be taken by the State Governments and the
Union Territories to educate the people of the necessity of
implementing the provisions of the Act by conducting workshops as
well as awareness camps at the State and District levels.”
3. It is common knowledge that the State Governments and Union
Territories some times hold workshops as well as awareness camps at
the State and District levels which have the characteristic of a
routine performance, sans sincerity, bereft of seriousness and shorn
of meaning. It is embedded on data-orientation. It does not require
Solomon’s wisdom to realize that there has not yet been effective
implementation of the provisions of the Act, for there has not only
been total lethargy and laxity but also failure on the part of the
authorities to give accent on social, cultural, psychological and
legal awareness that a female foetus is not to be destroyed for many a
reason apart from command of the law. Needless to emphasise, there
has to be awareness of the legal provisions and the consequences that
have been provided for violation of the Pre-Conception and Pre-Natal
Diagnostic Techniques (Prohibition on Sex-Selection) Act, 1994 (for
brevity “the Act”) but, a significant one, the awareness in other
spheres are absolutely necessitous for concretizing the purposes of
the Act.
4. Be it noted, this is not for the first time that this Court is showing
its concern. It has also been done before. In Centre for Enquiry
into Health and Allied Themes (CEHAT) and others v. Union of India and
others[1], the two-Judge Bench commenced the judgment stating that the
practice of female infanticide still prevails despite the fact that
the gentle touch of a daughter and her voice has a soothing effect on
the parents. The Court also commented on the immoral and unethical
part of it as well as on the involvement of the qualified and
unqualified doctors or compounders to abort the foetus of a girl
child. It is apposite to state here that certain directions were
given in the said decision.
5. Female foeticide has its roots in the social thinking which is
fundamentally based on certain erroneous notions, ego-centric
traditions, pervert perception of societal norms, and obsession with
ideas which are totally individualistic sans the collective good. All
involved in female foeticide deliberately forget to realize that when
the foetus of a girl child is destroyed, a woman of future is
crucified. To put it differently, the present generation invites the
sufferings on its own and also sows the seeds of suffering for the
future generation, as in the ultimate eventuate, the sex ratio gets
affected and leads to manifold social problems. I may hasten to add
that no awareness campaign can ever be complete unless there is real
focus on the prowess of women and the need for women empowerment.
6. On many an occasion this Court has expressed its anguish over this
problem in many a realm. Dealing with the unfortunate tradition of
demand of dowry from the girl’s parents at the time of marriage
despite the same being a criminal offence, a two-Judge Bench in State
of H.P. v. Nikku Ram and others[2] has expressed its agony thus: -
“Dowry, dowry and dowry. This is the painful repetition which
confronts, and at times haunts, many parents of a girl child in
this holy land of ours where, in good old days the belief was :
“???? ????????? ????????? ?????? ???? ?????:” [ yatra
naryastu pujyanteramante tatra dewatah”] (where woman is worshipped, there is
abode of God). We have mentioned about dowry thrice, because
this demand is made on three occasions: (i) before marriage;
(ii) at the time of marriage; and (iii) after the marriage.
Greed being limitless, the demands become insatiable in many
cases, followed by torture on the girl, leading to either
suicide in some cases or murder in some.”
The aforesaid passage clearly reflects the degree of anguish of this
Court in regard to the treatment meted out to the women in this country.
7. It is not out of place to state here that the restricted and
constricted thinking with regard to a girl child eventually leads to
female foeticide. A foetus in the womb, because she is likely to be
born as a girl child, is not allowed to see the mother earth. In M.C.
Mehta v. State of Tamil Nadu and others[3], a three-Judge Bench, while
dealing with the magnitude of the problem in engagement of the child
labour in various hazardous factories or mines, etc., speaking through
Hansaria, J., commenced the judgment thus: -
“I am the child.
All the word waits for my coming.
All the earth watches with interest to see what I shall become.
Civilization hangs in the balance.
For what I am, the world of tomorrow will be.
I am the child.
You hold in your hand my destiny.
You determine, largely, whether I shall succeed or fail,
Give me, I pray you, these things that make for happiness.
Train me, I beg you, that I may be a blessing to the world.”
8. The aforesaid lines from Mamie Gene Cole were treated as an appeal by
this Court and the Bench reproduced the famous line from William
Wordsworth “child is the father of the man”. I have reproduced the
same to highlight that this Court has laid special emphasis on the
term “child” as a child feels that the entire world waits for his/her
coming. A female child, as stated earlier, becomes a woman. Its life-
spark cannot be extinguished in the womb, for such an act would
certainly bring disaster to the society. On such an act the
collective can neither laugh today nor tomorrow. There shall be tears
and tears all the way because eventually the spirit of humanity is
comatosed.
9. Vishwakavi Rabindranath Tagore, while speaking about a child, had said
thus: -
“Every child comes with the message that God is not yet
discouraged of man.”
10. Long back, speaking about human baby, Charles Dickens had said thus :
-
“Every baby born into the world is a finer one than the last.”
11. A woman has to be regarded as an equal partner in the life of a man.
It has to be borne in mind that she has also the equal role in the
society, i.e., thinking, participating and leadership. The
legislature has brought the present piece of legislation with an
intention to provide for prohibition of sex selection before or after
conception and for regulation of pre-natal diagnostic techniques for
the purposes of detecting genetic abnormalities or metabolic disorders
or chromosomal abnormalities or certain congenital malformations or
sex-linked disorders and for the prevention of their misuse for sex
determination leading to female foeticide. The purpose of the
enactment can only be actualised and its object fruitfully realized
when the authorities under the Act carry out their functions with
devotion, dedication and commitment and further there is awakened
awareness with regard to the role of women in a society.
12. It would not be an exaggeration to say that a society that does not
respect its women cannot be treated to be civilized. In the first
part of the last century Swami Vivekanand had said: -
“Just as a bird could not fly with one wing only, a nation would
not march forward if the women are left behind.”
13. When a female foeticide takes place, every woman 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 a female child in its conceptual eventuality leads to killing of a
woman. Law prohibits it; scriptures forbid it; philosophy condemns
it; ethics deprecate it, morality decries it and social science abhors
it. Henrik Ibsen emphasized on the individualism of woman. John
Milton treated her to be the best of all God’s work. In this context,
it will be appropriate to quote a few lines from Democracy in America
by Alexis De Tocqueville: -
“If I were asked ... to what the singular prosperity and growing
strength of that people [Americans] ought mainly to be
attributed, I should reply: to the superiority of their women.”
14. At this stage, I may with profit reproduce two paragraphs from Ajit
Savant Majagvai v. State of Karnataka[4]: -
“3. Social thinkers, philosophers, dramatists, poets and writers
have eulogised the female species of the human race and have
always used beautiful epithets to describe her temperament and
personality and have not deviated from that path even while
speaking of her odd behaviour, at times. Even in sarcasm, they
have not crossed the literary limit and have adhered to a
particular standard of nobility of language. Even when a member
of her own species, Madame De Stael, remarked “I am glad that I
am not a man; for then I should have to marry a woman”, there
was wit in it. When Shakespeare wrote, “Age cannot wither her;
nor custom stale, her infinite variety”, there again was wit.
Notwithstanding that these writers have cried hoarse for respect
for “woman”, notwithstanding that Schiller said “Honour women!
They entwine and weave heavenly roses in our earthly life” and
notwithstanding that the Mahabharata mentioned her as the source
of salvation, crime against “woman” continues to rise and has,
today undoubtedly, risen to alarming proportions.
4. It is unfortunate that in an age where people are described
as civilised, crime against “female” is committed even when the
child is 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 a 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 is unthinkable. To torment
a wife can only be described as the most hated and derisive act
of a human being.”
[Emphasis supplied]
15. In Madhu Kishwar v. State of Bihar[5] this Court had stated that
Indian women have suffered and are suffering discrimination in
silence. Self-sacrifice and self-denial are their nobility and
fortitude and yet they have been subjected to all inequities,
indignities, inequality and discrimination.
16. The way women had suffered has been aptly reflected by an author who
has spoken with quite a speck of sensibility: -
“Dowry is an intractable disease for women, a bed of arrows for
annihilating self-respect, but without the boon of wishful
death.”
17. Long back, Charles Fourier had stated “The extension of women’s rights
is the basic principle of all social progress”.
18. Recapitulating from the past, I may refer to certain sayings in the
Smritis which put women in an elevated position. This Court in Nikku
Ram’s case (supra) had already reproduced the first line of the
“Shloka”. The second line of the same which is also significant is as
follows: -
“???? ?????? ? ????????? ???????????????: ??????:”
[Yatra tastu na pujyante sarvastatraphalah kriyah]
A free translation of the aforesaid is reproduced below:-
“All the actions become unproductive in a place, where they are
not treated with proper respect and dignity.”
19. Another wise man of the past had his own way of putting it:
“???????????????????????????????????: |
?????????? ???????: ??????: ???????????????: ||”
[Bhartr bhratr pitrijnati swasruswasuradevaraih| Bandhubhisca
striyah pujyah bhusnachhadanasnaih||].
A free translation of the aforesaid is as follows:-
“The women are to be respected equally on par with husbands,
brothers, fathers, relatives, in-laws and other kith and kin and
while respecting, the women gifts like ornaments, garments, etc.
should be given as token of honour.”
20. Yet again, the sagacity got reflected in following lines: -
“????? ???? ??????: ????????????? |
?????? ?????????? ??????????????? ?????? ||”
[Atulam yatra
tattejah sarvadevasarirajam| Ekastham tadabhunnarivyaptalokatrayam tvisa||]
A free translation of the aforesaid is reproduced below:-
“The incomparable valour (effulgence) born from the physical
frames of all the gods, spreading the three worlds by its
radiance and combining together took the form of a woman.”
21. From the past, I travel to the present and respectfully notice what
Lord Denning had to say about the equality of women and their role in
the society: -
“A woman feels as keenly, thinks as clearly, as a man. She in
her sphere does work as useful as man does in his. She has as
much right to her freedom – to develop her personality to the
full as a man. When she marries, she does not become the
husband’s servant but his equal partner. If his work is more
important in life of the community, her’s is more important of
the family. Neither can do without the other. Neither is above
the other or under the other. They are equals.”
22. I have referred to certain pronouncements of this Court, the sayings of
the sagacious ones, thinkers, poets, philosophers and jurists about the
child and women only to emphasise that they play a seminal role in the
society. The innocence of a child and the creative intelligence of a
woman can never ever be brushed aside or marginalized. Civilization of
a country is known how it respects its women. It is the requisite of
the present day that people are made aware that it is obligatory to
treat the women with respect and dignity so that humanism in its
conceptual essentiality remains alive. Each member of the society is
required to develop a scientific temper in the modern context because
that is the social need of the present. A cosmetic awareness campaign
would never subserve the purpose. The authorities of the Government,
the Non-Governmental Organisations and other volunteers are required to
remember that there has to be awareness camps which are really
effective. The people involved with the same must take it up as a
service, a crusade. They must understand and accept that it is an art
as well as a science and not simple arithmetic. It cannot take the
colour of a routine speech. The awareness camps should not be founded
on the theory of Euclidian geometry. It must engulf the concept of
social vigilance with an analytical mind and radiate into the marrows of
the society. If awareness campaigns are not appositely conducted, the
needed guidance for the people would be without meaning and things shall
fall apart and everyone would try to take shelter in cynical escapism.
It is difficult to precisely state how an awareness camp is to be
conducted. It will depend upon what kind and strata of people are being
addressed to. The persons involved in such awareness campaign are
required to equip themselves with constitutional concepts, culture,
philosophy, religion, scriptural commands and injunctions, the mandate
of the law as engrafted under the Act and above all the development of
modern science. It needs no special emphasis to state that in awareness
camps while the deterrent facets of law are required to be accentuated
upon, simultaneously the desirability of law to be followed with
spiritual obeisance, regard being had to the purpose of the Act, has to
be stressed upon. The seemly synchronization shall bring the required
effect. That apart, documentary films can be shown to highlight the
need; and instill the idea in the mind of the public at large, for when
mind becomes strong, mountains do melt. The people involved in the
awareness campaigns should have boldness and courage. There should not
be any iota of confusion or perplexity in their thought or action. They
should treat it as a problem and think that a problem has to be
understood in a proper manner to afford a solution. They should bear in
mind that they are required to change the mindset of the people, the
grammar of the society and unacceptable beliefs inherent in the
populace. It should be clearly spelt out that female foeticide is the
worst type of dehumanisation of the human race.
23. I have highlighted the aforesaid aspects so that when awareness
campaigns are held, they are kept in view, for that is the object and
purpose to have real awareness.
24. The matter be listed as directed.
.............................J.
[Dipak Misra]
New Delhi;
March 04, 2013.
-----------------------
[1] (2001) 5 SCC 577
[2] (1995) 6 SCC 219
[3] AIR 1997 SC 699
[4] (1997) 7 SCC 110
[5] AIR 1996 SC 1864
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