CHAPTER-V

AN ANALYSIS OF THE PRE-CONCEPTION AND PRE-NATAL

DIAGNOSTIC TECHNIQUES ACT, 1994.

V.1 INTRODUCTION:
The strong law against female foeticide was enacted and suitably amended. Over a
decade has passed but results are unsatisfactory. Where lies the fault in the law, its
provisions, principles or expectations. Along these questions, the Act has been analytically
studied hereunder.

Female foeticide is the beginning of the suffering of a woman in the course of her
long suffering from womb to the tomb.It is a paradox that on the one hand the Indian culture
and tradition consider womanhood as sacred and sacrosanct and on the other hand Indian
women are killed in the mother’s womb.1.The clubbing of tradition (son preference) and
technology (ultra-sound) has a played a havoc in Indian society. Other than population
imbalance this brings in its wake associated social problems like violence against women,
sexual abuse, trafficking, forced polyandry, the list is endless.

In India since 1978, the amniocentesis test is being used as a sex determination or
sex pre-selection test. Since then the test has become extremely popular and has led to
multiplication of private clinics which perform the test all over the country. The NGO’s the
women activists were all helpless because of the Medical Termination of Pregnancy
According to the Act if any abnormality is detected between 12-18 weeks of gestation
period in the foetus, an abortion can be legally carried out up to 20 weeks of pregnancy. The
reports were manipulated and there was mass destruction of female foetuses.The most
astounding statistics reveal that in a prominent hospital in Mumbai, the pre-sex
determination tests revealed that during 1978-82 nearly 8000 pregnant women were
expected to a female child. But to prevent this,7999 of them underwent abortion.2

1
Dr.Binayak Patnaik, “Female Foeticide: A Socio- Legal Analysis”, Ciminal Law Journal, Dec.2006,P-313
2
Gour , “Empowerment of Women in India”, Law Publishers Allahabad,1994, p-16.

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 This worsening situation pressurized the government to enact the Pre-Natal
Diagonostic Techniques(Regulation and Prevention of Misuse)Act,1994.With the
advancement of science and technology, certain techniques have been developed by which
even before conception, the sex of the child can be selected. Therefore certain amendments
were made in the PNDT Act, 1994 in 2002 and now it is called the Pre-Conception and Pre-
Natal Diagnostic Techniques (Prohibition of sex selection) Act 1994.3 It prohibits sex
selection completely either before or after conception. It regulates the use of pre-natal
diagnostic techniques for legal or medical purposes and prevents misuse for illegal purpose.

The relentless female foeticide linked to the sex-determination test in Punjab and
Haryana, which has led to an alarming dip in the female population of the two States, have
now found a new easy-to-use high-tech gadget to determine the sex of the unborn baby. For
parents who consider a male progeny as a prized possession, an innovative kit imported
from the US and Canada and costing around Rs.20,000 has become a most sought after
gadget in the State of Punjab. The gadget enables the identification of the gender of the
foetus within seven weeks of the pregnancy. All this is sought to be restrained by the PC
and PNDT Act,1994. The PNDT law is a prohibitory and regulatory statute; it seeks to
put in place a mechanism which prohibits sex selection while preventing the misuse and
over-use of the pre-natal diagnostic techniques. At the same time, the Act permits and
regulates the use of such techniques for the purpose of detection of specific genetic
abnormalities or disorders and for the larger benefit of mankind. The Act further permits
the use of such techniques only under certain conditions by the registered bodies. The
PNDT Act prohibits the conduct of pre-natal diagnostic techniques for determination of the
sex of the foetus but allows the conduct of pre-natal diagnostic techniques for purposes
that have also been specified under the Act.

The Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act,

1994 has been amended to The Pre- Conception and Pre-Natal Diagnostic Techniques
Act,1994.Certain insertions and substitutions to the Act of 1994 were made, rest of the

3
The Act was initially the Pre Natal Diagnostic Tecniques Act-1994 but it was renamed and amended
in 1994 (14 of 1994) and now it stands as Pre Conception and Pre-Natal Diagnostic Techniques Act
1994.

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sections remaining the same. Mainly stress has been laid on prohibiting the pre-conception
malpractices as the medical technology has advanced to such a level where a selected sex
can be conceived. PNDT Rules,1996 were passed as per section 32 of the Act and various
procedures for implementing the provisions of the Act.

The Act comprises of 34 sections and 19 Rules. There are formats A,B,C,D,E,F,G
and H appended with the Act for grant of registration and record keeping by the genetic/
ultrasound centres and Appropriate Authorities. The Act has three aspects viz. prohibitory,
regulatory and preventive.

V.2 THE LAW PROTECTING THE FEMALES RIGHT TO LIFE:

a) Prohibitory Provisions:

Prohibitory provisions of the Act are contained in 4 Sections. First of all there is an express
prohibition on the genetic clinics and counseling centers etc. that they cannot employ not
possess the qualifications prescribed for the same as per the Act.4 No Genetic Counselling
Centre or Genetic Laboratory or Genetic Clinic shall employ or cause to be employed or
take services of any person, whether on honorary basis or on payment who does not possess
qualifications as may be prescribed;5

No medical geneticist, gynaecologist, paediatrician, registered medical practitioner

or any other person shall conduct or cause to be conducted or aid in conducting by
himself or through any other person, any pre-natal diagnostic techniques at a place
other than a place registered under this Act.

Prohibition of sex-selection- No person, including a specialist or a team of

specialists in the field of infertility, shall conduct or cause to be conducted or aid in
conducting by himself or by any other person, sex selection on a woman or a man or on

4
Sec.3 of the PC and PNDT Act,1994
5
Sec 3A of the PC and PNDT Act,1994

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both or on any tissue, embryo, conceptus, fluid or gametes derived from either or both of
them.6

Prohibition on sale of ultrasound machines, etc., to persons, laboratories, clinics,

etc. not registered under the Act.- No person shall sell any ultrasound machine or imaging
machine or scanner or any other equipment capable of detecting sex of foetus to any
Genetic Counseling Centre, Genetic Laboratory, Genetic Clinic or any other person not
registered under the Act.7

No person, organization, Genetic Counselling Centre, Genetic Laboratory or

Genetic Clinic, including clinic, laboratory or centre having ultrasound machine or imaging
machine or scanner or any other technology capable of undertaking determination of sex
of foetus or sex selection shall issue, publish, distribute, communicate or cause to be
issued, published, distributed or communicated any advertisement, in any form, including
internet, regarding facilities of pre-natal determination of sex or sex selection before
conception available at such centre, laboratory, clinic or at any other place.8 The minimum
qualifications of the employee are medical geneticist, gynecologist with six months
experience in genetic counseling or having completed for weeks training in genetic
counseling pediatrician with six months experience in genetic counseling or having
completed four weeks training in genetic counseling. The minimum place a room with an
area of seven square meters.9

“Person” includes manufacturer, importer, dealer or supplier of ultrasound

machines/imaging machines or any other equipment capable of detecting sex of foetus” as
also any organization including a commercial organization.

6
Sec 3A of the PC and PNDT Act,1994
7
Sec 3B of the PC and PNDT Act, 1994
8
Sec.22 of the PC and PNDT Act,1994: 22. Prohibition of advertisement relating to pre-natal determination
of sex and punishment for contravention.
9
Sec. 3of The Pre-Natal Diagnostic Technique (Regulation and Prevention Of Misuse) Rules 1996

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V.3 PREVENTIVE-PROVISIONS:

There are 6 provisions in the Act which are preventive in nature. They seek to
prevent the hostile actions of the medical professionals as well as the society.

No Genetic Counseling Centre, Genetic Laboratory or Genetic clinic shall conduct any sex
determination test, nor in any manner may disclose the sex or help the people in sex
selection in any manner.10

The private clinicians are avarice-ridden, the Act, the government has become
stringent so the tests have become very experience. With the cameras recording has rendered
these tests very secretive, but the flouters have their own methods of violating the law.

It does not really matter that the law has forbidden the doctors from disclosing their
patients anything more than be health status of the unborn child, but they do it anyway. It is
done in a manner where they cannot be booked or taken to court.

According to the non-official jargon for telling couples that they have a baby boy,
doctors in the country use sign language to disclose the sex of the foetus. Religious greetings
are the most popular-while a male foetus is announced with a “Jai Shri Krishna”, “Jai
Ganesh”, “Jai Shri Ram” or “Har Har Mahadev”, indicators of a female foetus include “Jai
Mata DURGA”, “Jai Ambe” and so on. The ones who practice this heinous crime more
often and the more sophisticated ones just make use of blue and red pens,i.e. if it is a baby
boy they write with a blue pen “report is normal” and if it is a baby girl they simply use a
red pen to write that “ the report is normal”.

So, the Doctor, does’nt utter a single word, doesn’t use any sign language to a
normal human being he does not disclose the sex of the foetus, but he has done his job.

A person cannot open a genetic clinic,genetic counseling centre or genetic laboratory

until it is duly registered under this Act.11A person desiring to open the same has to apply in

10
Sec 6 of the PC and PNDT Act,1994: . Determination of sex prohibited
11
Sec 18 of the PNDT Act,1994.

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Form A as per the 1996 Rules.12 So much so a person has been prevented from opening an
imaging centre before registeration.13

In case a RMP or geneticist is convicted under this Act the State Medical Council
may remove that RMP’s name from its register till the final disposal of the case. In case
such a RMP is convicted then his name may be cut from the State Medical Council’s
Register for a period of 5 years for the first conviction and if the RMP is convicted again
then his name may be permanently removed from the Register of State Medical Council. If
any person seeks the help of any genetic clinic or imaging center for the purpose of sex
selection then he may be punished with an imprisonment of 3 years and fine upto Rs.50,000
for the first such act and for the second such Act it may increase to 5 years imprisonment
and fine may increase to 1 lakh Rs.14

It shall be open to the Court to legitimately believe that the pregnant woman was
forced to undergo this test.15In case any such offence is committed for which no specific
penalty is present as per the Act, then for first such act the imprisonment is 3 months and
fine is Rs.1000 and an additional fine of Rs.5000 may be imposed for every contravening
day.16If the offence under the Act is the one which is committed by a company, in that case
the in charge of that company shall be punished, but he would not be held liable if he is able
to prove that the said offence had taken place without his knowledge.17

V.4 REGULATORY PROVISIONS:

As far as this Act is concerned there are 27 regulatory provisions in it. Under Section
4 of the Act it is said that the ultra sound tests may be conducted only for specified purposes.
A complete record of the ultra sound test has to be kept by the hospital concerned otherwise
it would be assumed that sex determination was carried out.18Form G has to be filled by the

12
Section 4 of The PNDT Rules 1996.
13
Section 18 of the PC and PNDT Act,1994.
14
Section 23 of the PC and PNDT Act,1994.
15
Section 24 of the PC and PNDT Act,1994.
16
Section 25 of the PC and PNDT Act,1994.
17
Section 26 of the PC and PNDT Act,1994.
18
Section 4 of the PC and PNDT Act,1994.

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woman undergoing ultrasound wherein she has to declare that she is undergoing the test.19
Section 7 talks about a Central Supervisory Board for conducting various functions under
this Act. Sections 8-16 talk about the conditions of its members’ services, their meetings and
the facts about their vacancies,their functions etc.. The central government and the state
governments can appoint Appropriate Authorities for the Union Territories which
investigate the breaches of this Act, they are the ones which provide the registeration
certificates to the genetic lab centres etc.20 Regarding the registration of genetic counseling
centre, genetic laboratory and genetic clinic, an application shall be made to the appropriate
authority, in duplicate in Form A. The Appropriate authorized in this behalf, shall
acknowledged receipt of the application slip provided at the bottom of form is immediately
if delivered at the office of the Appropriate Authority or not later than the next working day
if received by post.21 Every certificate of registration shall be valid for a period of five years
from the date of its issue.22The certificate of registration is liable to be cancelled if the
Appropriate Authority feels it is essential in public interest.23The offences under this Act are
cognizable,non-compoundable and non-bailable.24A court can take cognizance of a crime
under this Act if the complaint is made by the Appropriate Authority, a person or a social
organization may take an action under the Act but they have to give a notice of minimum 15
to the Appropriate Authority.25All records have to be maintained for a period of two years
by all genetic clinics in Form D and they have to be made available to the Appropriate
Authority at all reasonable hours.26Further if the Appropriate Authority opines that an
offence under this Act is being committed in any genetic lab, centre or clinic then it can
enter, search and seize any material object at reasonable hours27. If an action is taken by the
Appropriate Authority against the Central Government or the State Government in good

19
Section 5 of the PC and PNDT Act,1994.
20
Section 19 of the PC and PNDT Act,1994.
21
Sec. 4 of The Pre-Natal Diagnostic Technique (Regulation and Prevention Of Misuse) Rules 1996.
22
Sec. 7 of The Pre-Natal Diagnostic Technique (Regulation and Prevention Of Misuse) Rules 1996
23
Section 20 of the PC and PNDT Act,1994.
24
Section 27 of the PC and PNDT Act,1994.
25
Section 28 of the PC and PNDT Act,1994.
26
Section 28 of the PC and PNDT Act,1994.
27
Section 31 of the PC and PNDT Act,1994.

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faith then their actions are protected.28Section 31A has been added in 2002 as per which if
there is a difficulty in implementing the Act then the Central Government may be asked to
remove that impediment in the smooth functioning of the Act. The Central Government
may make certain rules, set out procedures for the genetic centres to follow and same are to
be presented before both the houses of the parliament.29

V.5 THE JUDICIARY’S ROLE:

The Judiciary has pronounced 29 major cases under the PC and PNDT Act. Out of
these in 9 cases the SC has laid down guidelines for strictly implementing this law.30

The situation continues to get grimmer despite the presence of PNDT Act. Time to
time the Apex Court has been issuing orders to implement this law tooth and nail. There are
many cases which travelled upto the SC so as to bring on the strict enforcement of the Law
against female foeticide. Time to time various cases have come up various courts
highlighting the dwindling sex ratio and increasing female foeticide forcing the Courts to
step in and issuing guidelines for effective functioning of the law. The Courts have
pronounced that it is a significant piece of legislation and it has to be applied with full
dedication.

A concern was raised through a public interest litigation (PIL) which was filed by
some NGO’s –CEHAT Vs Union of India31 in the Supreme Court of India. The case was
initiated by Centre for Enquiry into Health and Allied Themes (CEHAT), a research
organisation; Mahila Sarvangin Utkarsh Mandal (MASUM), a Non-Governmental
organization and Dr. Sabu M. George, a civil society member. It highlighted many lacunae
in the implementation of this law. A total six orders were passed in this case. It exhibits the
deep concern and the anguish felt by the Apex Court towards the social evil of sex selection
28
Section 31A of the PC and PNDT Act,1994.
29
Section 32 of the PC and PNDT Act,1994.
30
Shalini Phansalkar, “Compilation and analysis of Case Laws on PC and PNDT Act ,1994”, Joint
Director Maharashtra Judicial Academy, A book by Judicial Academy Maharashtra supported by
UNFPA.
31
(2001)5SCC577.

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followed by elimination of foetus if found to be female. The Supreme Court was equally
concerned with the apathy on the part of Government in implementation of the law which
aims at preventing such a social evil.

The perusal of these directions in the form of total six orders is sufficient to reflect
that the Supreme Court has to in this matter literally legislate on how the Act should be
implemented.

In its first order 32after filing of this petition, this Court issued notices to the parties
concerned on 9-5-2000 to file an affidavit and tell what steps they are taking in their
respective states to effectively enforce this law. It took nearly one year for the various States
to file their affidavits in reply/written submissions. Howsoever, it appears that despite the
PNDT Act being enacted by Parliament five years back, neither the State Governments nor
the Central Government has taken appropriate action for its implementation. Hence, after
considering the respective submissions made at the time of hearing of this matter, as
suggested by the learned Attorney-General for India, Mr Soli J. Sorabjee, the following
directions were issued on the basis of various provisions for the proper implementation of
the PNDT Act:

I. Directions to the Central Government

1. The Central Government is directed to create public awareness against the practice
of prenatal determination of sex and female foeticide through appropriate
releases/programmes in the electronic media. This shall also be done by the Central
Supervisory Board (“CSB” for short) as provided under Section 16(iii) of the PNDT
Act.
2. The Central Government is directed to implement with all vigour and zeal the PNDT
Act and the Rules framedin 1996. Rule 15 provides that the intervening period
between two meetings of the Advisory Committees constituted under sub-section (5)
of Section 17 of the PNDT Act to advise the appropriate authority shall not exceed
60 days. It would be seen that this Rule is strictly adhered to.

32
2001 (5) SCC 577

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II. Directions to the Central Supervisory Board (CSB)

1. Meetings of CSB will be held at least once in six months [re proviso to Section 9(1)].
The constitution of CSB is provided under Section 7. It empowers the Central
Government to appoint ten members under Section 7(2) (e) which includes eminent
medical practitioners, including eminent social scientists and representatives of
women welfare organizations. We hope that this power will be exercised so as to
include those persons who can genuinely spare some time for implementation of the
Act.
2. CSB shall review and monitor the implementation of the Act [re Section 16(ii)].

3. CSB shall issue directions to all State/UT appropriate authorities to furnish quarterly
returns to CSB giving a report on the implementation and working of the Act. These
returns should inter alia contain specific information about:
(i) Survey of bodies specified in Section 3 of the Act;
(ii) Registration of bodies specified in Section 3 of the Act;
(iii) Action taken against non-registered bodies operating in violation of Section 3 of the
Act, inclusive of search and seizure of records;
(iv) Complaints received by the appropriate authorities under the Act and action taken
pursuant thereto;
(v) Number and nature of awareness campaigns conducted and results flowing
therefrom.

4. CSB shall examine the necessity to amend the Act keeping in mind emerging
technologies and difficulties encountered in implementation of the Act and to make
recommendations to the Central Government (Section 16).

5. CSB shall lay down a code of conduct under Section 16(iv) of the Act to be observed
by persons working in bodies specified therein and to ensure its publication so that
the public at large can know about it.

6. CSB will require medical professional bodies/associations to create awareness

against the practice of prenatal determination of sex and female foeticide and to
ensure implementation of the Act.

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III. Directions to State Governments/UT Administrations

1. All State Governments/UT Administrations are directed to appoint by notification,

fully empowered appropriate authorities at district and sub-district levels and also
Advisory Committees to aid and advise the appropriate authorities in discharge of
their functions [re Section 17(5)]. For the Advisory Committee also, it is hoped that
members of the said Committee as provided under Section 17(6)(d) should be such
persons who can devote some time to the work assigned to them.
2. All State Governments/UT Administrations are directed to publish a list of the
appropriate authorities in print and electronic media in their respective States/UTs.

3. All State Governments/UT Administrations are directed to create public awareness

against the practice of prenatal determination of sex and female foeticide through
advertisement in print and electronic media by hoardings and other appropriate
means.

4. All State Governments/UT Administrations are directed to ensure that all State/UT
appropriate authorities furnish quarterly returns to CSB giving a report on the
implementation and working of the Act. These returns should inter alia contain
specific information about:
(i) Survey of bodies specified in Section 3 of the Act;
(ii) Registration of bodies specified in Section 3 of the Act;
(iii) Action taken against non-registered bodies operating in violation of Section 3 of the
Act, inclusive of search and seizure of records;
(iv) Complaints received by the appropriate authorities under the Act and action taken
pursuant thereto;
(v) Number and nature of awareness campaigns conducted and results flowing there
from.

4. CSB and the State Governments/Union Territories were directed to report to the
Court on or before 30-7-2001.

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 It was said in the writ petition that in many states the Appropriate Authorities are not
working satisfactorily. It was highlighted that even though the genetic counselling centres,
genetic laboratories or genetic clinics are not registered, no action is taken as provided under
Section 23 of the Act, but only a warning is issued. The Court said in the second order33,
those centres which are not registered are required to be prosecuted by the authorities under
the provisions of the Act and there is no question of issue of warning and to permit them to
continue their illegal activities. It is to be stated that the appropriate authorities or any officer
of the Central or the State Government authorized in this behalf is required to file complaint
under Section 28 of the Act for prosecuting the offenders. Further, wherever at district level,
appropriate authorities are appointed, they must carry out the necessary survey of clinics and
take appropriate action in case of non-registration or non-compliance with the statutory
provisions including the Rules. Appropriate authorities are not only empowered to take
criminal action, but to search and seize documents, records, objects etc. of unregistered
bodies under Section 30 of the Act.

All the State Governments/Union Territories to implement the Act and also to
publish the list of Appropriate Authorities in their states.

In its third order34 a National Inspection and Monitoring Committie was ordered to
be set up for better implementation of the Act.
35
By the Fourth order it was said that transfer of Dr. Dahiya was unjustified. It was
said by the SC that the ultrasound manufacturing companies to supply the information as to
how many machines they have sold to various clinics within the last five years including
their names and addresses and also service contract to those clinics or individuals, as the
case may be.Furthermore, the Customs & Import Department are directed to supply
information on number of ultrasound machines sold to clinics or individuals as the case may
be. The Centre was asked to frame rules for ensuring action. Till the time that such rules are
framed some companies are directed to supply such details. These companies include Wipro
GE, Philips Medical Systems, Siemens, Toshiba, Larsen & Toubro.
33
(2003) 8 SCC 406
34
(2003) 8 SCC 409
35
(2003) 8 SCC 410

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 By the fifth order36 it was said that the Prenatal Diagnostic Techniques (Regulation
and Prevention of Misuse) Act, 1994 was amended and it is now named as the
Preconception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act.It was
realized that the new Act was not implemented properly. It was said that the amendment is
in conformity with the various directions issued by this Court and, therefore, the amended
Act also requires to be properly implemented. On the basis of the aforesaid amendment,
appropriate action has already been taken by the Union of India for its implementation and
almost all the State Governments/UTs are informed to implement the said Act and the rules
and the State
Governments/UTs are directed to submit their quarterly reports to the Central
Supervisory Board.
The petitioners said that the Act for all its purposes was a frivolous piece of
legislation.
It was said, “The problem today is the interpretation of this Act by the
ultrasonologists, the abortionists, the doctors and most importantly the Government.” It was
said by the petitioners that the narrow interpretation of the Act excludes prenatal sex
selection from its purview. There were widespread advertisements by various clinics
providing prenatal sex selection. The petitioners further contended that by ultrasonography
and amniocentesis, the sex of the foetus is discovered and the foetus if found to be female is
aborted. These tests were carried out even by compounders and doctors without the
necessary qualifications..It was observed by the Apex Court that advancement in diagnostic
technology is increasingly used for removal of foetus which has resulted in severe imbalance
in sex ratio.The tragic state of affairs of the crime is that it is more prevalent in economically
better off and developed States within the country.
A breakthrough during the hearing though was an order passed which directed the
FOGSI, the IMA and the Indian Radiologist Associations to submit names of their members
who possess ultrasound machines and verify if they are registered, this is the first time that
the medical community has been pulled up ever since the PIL was filed two years ago.

36
(2003) 8 SCC 412

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 The court said that the case has been continuing since the past three and a half years
and the course of the PIL has brought the issue of sex selection back into debate. The laxity
of the law implementing machinery has been brought to notice. As a result each state has
had to take stalk of what they have done so far towards the effective implementation of the
Act. At this point in time it was felt by the Apex Court that we have achieved the best that
we could through the Courts. Also the amendments in the Act itself have come through the
monsoon session of the parliament. There is a need for a greater effort to revive the
campaign again to look at issues at a local level by collaborating with the state machinery at
various platforms and externally act as pressure groups to ensure proper implementation of
the Act. An area that needs focus is the medical profession. The increasing malpractice and
poor concern for ethics within the profession should be brought to focus. An emphasis must
be made on the profession and its associations to take responsibility to regulate the unethical
practice of sex determination/selection.

A core group of individuals and NGOs in Maharashtra, for instance, has been formed
to provide direction and address various issues that would arise in the course of future
advocacy. Sensitising on gender issues (through collaboration with schools, colleges, youth
festivals etc.), dissemination of information available on the issue and coordination
between various NGOs were identified as certain key areas of work.

At the core of direction, the concern has been for creation and awareness in the
society against the practice of pre-natal sex determination and female foeticide through
appropriate releases/programmes in the electronic media.

The following directions were issued by the Apex Court:

1) The reports on the functioning of the district, State and National level should be
printed every 6 months (31stDecember and 30thJune). These reports should include.
Membership and minutes (including attendance) of the District, State and Central
Supervisory bodies. Action plans and follow up undertaken by these bodies be
stated.

2) List the names of non-official members of the Advisory Councils at all levels.

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3) Detailed report on the status and fate of the various violations reported. Number of
convictions for each year and by the nature of offence and action taken.These reports
should be made available to all concerned with the well being of the girl
child.Medical professionals, the medical associations and state and national medical
councils follow the code of conduct strictly.

4) With an emphasis on assuming responsibility to self-regulate so as to ensure that sex

determination / sex selection is not practiced. Unethical practitioners should be
identified and blacklisted.

5) The regulatory authorities should formulate standardized and transparent protocols

for monitoring so that there is no unnecessary harassment of providers. The media
(print, TV, electronic etc.) should not communicate any message,which is contrary to
intent and spirit of the Act (messages which legitimise the practice of sex
selection/sex determination). The Information and Broadcasting Ministry should take
the necessary action to enforce this directive.

The awareness/ advertising of safe legal abortion services should not get affected in
the monitoring of media.

At the Centre:

1. CSB commissions studies of sex ratios at birth every 3 years at State level. This
information should be collected independent of the routine Health Department
sources and birth registration data. The analysis of sex ratios at birth is an unbiased
indicator of the effectiveness of the implementation of the PNDT Law and related
efforts. CSB place a detailed report to the Supreme Court once every three years
beginning from 1st October 2004 (Thus we will have 3 time series data before the
Census 2011 surviving child sex ratios are available). State and National
Consultations should be held to plan appropriate follow up actions.

2. At least one women's rights organisation with relevant experience on the issue
should be represented in the CSB.

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3. All equipment having the potential of sex-determination and facilitating sex-
selection identified by appropriate authority must be registered at point of sale and
information pertaining to buyer and user, their qualifications etc.district-wise must
be reported annually to the appropriate authority and the latter should make this
information public.

At the State/UT:
1. Lists of Appropriate Authorities at district and sub district level with their
responsibilities should be published and widely circulated in newspapers reaching
both the urban and rural communities.
2. These lists should also be disseminated through the electronic media such as TV,
radio and should be flashed every fortnight so that the public have information about
the authorities
3. These lists should be sent to both public and private hospitals and clinics. Care
should be taken that these lists are displayed in prominent locations easily accessible
to the public.
4. Awareness building material developed by the state should be locally relevant and
should be developed in coordination with women's groups and local NGOs.
5. The IEC programme should create public awareness against the practice of prenatal
sex determination and sex selective abortion. Care should be taken to emphasize that
abortion is the reproductive right of a woman but sex selective abortion of the female
fetus selectively discriminates the rights of the girl child.
6. Awareness programmes taken up by the state should also cover high schools,
colleges, public and social institutions among others. The state should collaborate
with local NGOs and women's groups and conduct awareness programmes in the
region. All material developed by the state should be widely disseminated to both
public & private health and educational institutions and NGOs.
7. Quarterly reports furnished by the states/UT to the CSB should include-survey of
bodies in the Section 3 of the Act. The states should specify the number of bodies
surveyed in the quarter. Number of bodies registered specified in the section of the
act. The location of these bodies and date of registration should be specified.Action
against non-registered bodies operating in violation of Section 3 of the act inclusive

126
 of search and seizure records. Furnish list of complaints received date of complaint
action taken pending cases follow up of old cases and provide reasons for no action
taken in case of failure of action. Steps taken to ensure that the list of appropriate
authorities receiving complaints are easily accessible to the public in both urban and
rural areas. Steps taken to ensure that the role and responsibilities of the appropriate
authorities is widely publicized and method of grievance redressal should be
disseminated to the public using both print and electronic media.
8) Number of awareness programmes conducted, List of awareness building material,
location of display of awareness building material should be specified. Nature and
content of awareness programme conducted, target group, outreach and follow up of
awareness programme should be specified. For a period of three years the Supreme
Court should appoint a national core of organisations and likewise also state level
groups to monitor the implementation of the above mentioned directives and submit
a yearly status report to the SC.

Most of the directions issued by the SC have been incorporated in the amended Act.
Other than the abovesaid major cases a number of other directions have been given by the
SC and the High Courts under this law.

In Hemant Rath vs Union of India37 it was said the SC though had issued various
directions by CEHAT case but several states did not take effective steps to implement the
law in an effective manner. Hundreds of bones of infants were found near nursing homes
and genetic clinics which showed that pre-natal sex determination was still rampant. The
High Court asked the StateS Government to immediately appoint Appropriate Authority and
Advisory Body to take necessary steps. In Gaurav Goyal Vs State of Haryana38 the Apex
Court observed that the non publication of the Civil Surgeon’s appointment speaks volumes
about the utter disregard towards implementation of this piece of legislation.

37
AIR 2008 Or. 7
38
www.judis.nic.in as on 24 April 2014.

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 In Court on its own motion Vs State of Punjab39 the court itself noticed and issued
warning against the sex kits entering the Punjab markets.In Vinod Soni Vs Union of India40
and Vijay Sharma Vs Union of India41 the PC and PNDT Act was held not to be violative of
Art.21 and 14 of the Constitution.

In Qualified Private Medical Practitioners Vs State of Kerela42 it was said by the

Court that all the ultrasound centres should be registered whether they conduct pre- natal-
diagnostic techniques or not. In Suo Moto Vs State of Gujarat43it was said by the Court that
the rules are made and the forms are prescribed in aid of implementation of the Act to plug
the possible loopholes.So if Form F is not filled then it is violative of the Act’s section 4(3)
and section 5.

In Radiological Imaging Association Vs Union of India44 the Court declared that

though as per the Act the Form F and other details as per the Act is to be submitted to the
Civil Surgeon’s office by fifth of every month, while the collector by his order had said that
the same needed to be submitted online within 24 hours of the test. The Court said that given
the gravity of the increase in this offence it is possible to issue such an order.

In State Vs Dr. Anil Sabhani45 the prosecution had proved their case with the help of
decoy patients who afterwards i.e. in the Higher Court had turned hostile. But the Court
appreciated the objects and reasons of the Act and there were hand written testimonies of the
hostile witnesses. The case was decided for the prosecution proving the laudable efforts of
the Judiciary to make the Act successful.

39
Ibid.
40
2005 Cr. LJ 3408
41
AIR 2008 B’bay 29
42
2006(4) Ker LJ 81
43
2009 Cr. LJ 721
44
AIR 2006 Utr 78
45
www.judis.nic.in as on 24 April 2014

128
 In Girish Memorial Charitable Trust Vs State of Haryana46 the Punjab and Haryana
highlighted the achievement of the Deputy Comissioner Krishan Kumar’s ‘ Nawanshahr
Model’.It was said by the Court , “all the Deputy Commissioners in the State of Punjab shall
personally monitor the implementation and progress of the Scheme and they will be held
liable regarding any violation of the provisions of the Act in their respective districts. As per
the information supplied, at the Sub Division level Senior Medical Officers and at the
District level, Chief Medical Officers have been appointed as Appropriate Authorities. The
above said officers are also made personally responsible regarding implementation of the
Scheme. They are supposed to make periodical checking to ensure strict enforcement of the
provisions of the Act and shall submit fortnightly reports to the Deputy Commissioners
concerned.
On the same lines, the Deputy Commissioners in all the districts of the State of
Haryana shall monitor the implementation of the provisions of the Act. The Civil Surgeon
who is Member Secretary of the Task Force Civil Writ Petition No. 11856 of 2011 along
with the Deputy Commissioner of the respective districts shall be personally responsible to
enforce the provisions of the Act and they will be held liable if any violation is found.

In case of Union Territory, Chandigarh, the Director, Health Services is the

Appropriate Authority, who along with the District Family Welfare Officer shall be
personally responsible to the implementation of the provisions of the Act.

The drive to nab the culprits in both the States of Punjab& Haryana and Union
Territory, Chandigarh shall continue and no laxity will be shown in that regard. Status
Reports in a crisp manner be placed on record of this case after every three months.”

It has been reiterated by the Supreme Court that female foeticide has assumed great
proportions in India because of the fact that the accused seldom get convicted and the law
takes a long time to actually punish the accused. It again issued a number of guidelines for
the state governments to follow in Voluntary Health Association of Punjab Vs Union of
India47. The directions issued by the honourable court were as follows48:

46
Decided on 20-9-2014 available on www.indiakanoon.org as on 24 May 2014.
47
2013(3) Scale 195 SC.

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1. The Central Supervisory Board and the State and Union Territories Supervisory
Boards, constituted under Sections7 and 16A of PC&PNDT Act, would meet at least
once in six months, so as to supervise and oversee how effective is the
implementation of the PC&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 theprovisions of the PC&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
preconception 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 havebeen 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.

48
www.judis.nic.in as on 16 March,2013.

130
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 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 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 off all the pending
cases 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.

Thus the courts in India have expressed deep anguish against this horrific practice and has
been trying on their part to stop it.

It is not a bar that the law prohibits the doctors from disclosing the sex of the unborn
foetus but they have their own ways. The Appropriate Authority has imposed this
conditions that a panel of 4 Doctors have to state that ultra-sound is essential. Now even
cameras are installed inside the ultra-sound scan rooms. But, even then female-foeticide is
going on, the big question is how? The private clinicians are avarice-ridden, the Act, the
government has become stringent so the tests have become very experience. With the
cameras recording has rendered these tests very secretive, but the flouters have their own
methods of violating the law. The doctors used to convey the sex of the foetus with religious
pronouncements. Now all this is not possible but the Doctors have devised new ways of

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conveying the same to the would be parents. They write that the REPORT IS NORMAL
with a red pen if it’s a female but if it is a male then they use a blue pen to write the
same.49This is so when revealing the sex of a foetus by word, sign or other means is illegal
under the PNDT Act (Sec. 5(2).

The problem of female foeticide has become a routine because enforcing authorities
are also manned by doctors and the doctors will try and protect their fellow professionals
which is why prosecution is very low and investigations take forever. Karnataka is the only
State that has authorized non-medical officers such as officials in the State Women’s
Commission to take action for non-registration of diagnostic machines and maintenance of
records of all medically terminated pregnancies.

The modified/amended Act has been a boon for the corrupt officials who extort
money from private clinics and hospitals. The Chief District Medical Officers (CDMO) had
been given wide powers to conduct searches, etc. against the clinics set up to determine
gender. If is the only competent authority appointed by the government to have cases
registered against clinics. The Act also says CDMOs while discharging their duties if they
commit an act then they cannot be legally questioned. The registration process lacks
transparency and simplicity.

While the PNDT Act seeks to regulate and prevent misuse of pre-natal diagnostic
techniques, it rightly cannot deny them either. The law permits ultrasound clinics, clinics for
medical termination of pregnancies and assisted reproductive facilities as a routine matter
and as a legitimate business. Only diagnostic techniques are regulated under the Act and not
abortion services.

49
Gynaecologist, Rajindera Medical College,Patiala.

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V.6 DEFICIENCIES OF THE ACT :

The PNDT Act has many loopholes and inadequacies and it has mere symbolic
worth. The Act does not bite but only barks.50Besides the ground realities noted in the
functioning of the Act (highlighting inadequacies in the law and its implementation), some
other flaws observed in the PNDT Act are :

1) The 2002 amendment in the PNDT Rules, 1996, inserted two new categories of
units- the “Ultrasound clinics” and the “Imaging centres”. But the Rules, are silent
on the registration requirements of these units as to their declaration that they are
such centres which do not conduct pre natal diagnostic tests,even they are not
supposed to maintain records. This loophole leaves ample scope for the violators to
flout the law.

2) Regarding qualifications and certificates to be possessed by medical professionalss

in registered units (GCC, GC or GL), again the law is quiet that who is to provide
such certificates. Hence the registering authorities, who are medical professional
themselves, have the discretion to decide whether such training / experience is valid
or adequate.

3) Section 7(3) says that a Central Supervisory Board shall be there. It has members
like Secretary to the Government of India, incharge of Department of Family
Welfare, scientisists etc. statutory representation to radiologists or sinologists has
not been given.

4) Niether the Act nor the Rules provide for a situation where the advice of the advisory
committee and the opinion of the Appropriate Authority clashes.

5) The police have no participation in the implementation of the Act. The Appropriate
Authorities formed under the Act are given the power of inspection of units and also
the search and seizure of offending objects. The Appropriate Authority on its part

50
M.D.Singh and Gurpreet Pannu, “Female Foeticide : A Dangerous Potent in Gender Balance”,Law
Journal,G.N.D.U.Amritsar,Vol-XI, p-25.

133
 has expressed unwillingness to do so as it involves potential danger to life especially
when the units have political backing.

6) The penal provisions in the Act are not as strong that they can act as a proper
deterrent. There has been no permanent cancellation of licence of a medical
professional as per the terms of Section 23 of the Act by the Medical Council Of
India eversince the Act was passed.51

7) The Central Supervisory Board has no statutory representation from radiologists or

sonologists.

8) The Act as well as the Rules are quiet as to what course of action would be taken in
case the advice of the advisory committee is different with the opinion of the
Appropriate Authority. However, since the decision- making powers are vested in
the Appropriate Authority, the final decision has to be taken by him/her.

9) It is pertinent to mention that the Act is inconsistent in many places. The provisions
of Section 27 and 28 are a stone in the implementation of the Act. Section 27 of the
Act says that every offence under this Act shall be cognizable, non-bailable and non
compoundable. This indicates that police can take cognizance in the case based on
the first information report(FIR),however Sec.28 of the Act categorically states, “No
Court can 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 not given notice of not less than fifteen days to the
Appropriate Authority of his intention to send a complaint to the court.

10) Section 17 of the Act creates an Appropriate Authority by the notification in the
official gazette for the whole or part of the state for the purpose of this Act. The
Appropriate Authority is that focal point around which the entire Act revolves. Under

51
Satyameva Jayate,6 May 2011, DD-I.

134
 the Act the Appropriate Authority has been given the responsibility to grant, suspend
or cancel registration, to enforce standards prescribed, to investigate complaints of
breach, to seek and consider advice, to take appropriate legal action, to create
awareness, to supervise the implementation of provisions, to recommend modifications
in the Act and the Rules, and to take actions as necessary for implementation of the
Act. Thus where the responsibility of the Appropriate Authority has been so well laid
down in the Act, it is desirable that a system of accountability and fixing of
responsibility of the District and the State Appropriate Authority should also be
worked out clearly.

11) The manufacturing of a product is the first step towards its use or misuse. The
manufacturing license should be issued only to government institutions so that
monitoring becomes easier. The licensing function is proximate. If licenses for pre-
natal diagnosis were granted only to government institutions, the task of vigilance
would become easier. The ban on misuse of the techniques for SD imposed on
government institutions has not been violated for the past 15 years. There is no
provision which states that portable pre-natal diagnostic techniques
machinery/equipment, which are the main culprits behind sex determination tests must
be registered. Stringent rules have to be developed to prevent the extension of the
ultrasound machines to non-MBBS doctors. Also if the doctor does not possess post
graduate qualification in Radiology, the registering authority should be fully satisfied
with the experience and training requirements stipulated within the Act. Identification
of mobile ultrasound machines should be taken on priority because it perpetrates
structured violence in the form of door-to-door delivery of the sex determination
services. This has emerged as a growing menace, and has gone largely unchecked.

12) It is very difficult to implement the law laid down in sec.5 of the Act. It is essential
that the sample of the lady be codified and sent for testing in a place which is
designated to conduct the ultra sounds for a particular area. This should be done so as
to assure that the family concerned and the medical professional are not in a close
linkage and that the medical professional cannot disclose the sex of the foetus to the
prospective parents. This is because though the Act’s provisions restrain the Doctor

135
 from conveying in any manner the sex of the foetus, otherwise it is very tough to
determine whether the doctors have exercised this restraint or not.

13) The inclusion of a new Section 16-A in the Act regarding the powers of the
Supervisory Board has given rise to a new problem, it does not make a mention in
what manner the powers have to be divided between the various authorities to fulfill
their duties and functions as specified in the Act. This Section has another serious
anomaly i.e. the Section has adopted an approach which has consistently proved
ineffective. So, the approach should have been a grass-root level approach. The classic
example of Nawan Shahar deserves a mention here where all and sundry right from the
admininistrative authorities to common man have worked and improved the sex ratio
in that district. So, Panchayat-level machinery functioning together with local rural
institutions like the ‘anganwadis’ and schools would be an ideal way to tackle and
restrain the problem of misuse of PNDT.

14) A major stone in the implementation of the Act is that it does not lay upon any proper
duty upon any Authority under the Act to prohibit sex-determination and regulation of
PNDT techniques. There is no penalty attached for non-performance of duties, or acts
of commission or omission. In fact, so far the Central Supervisory Board has never
functioned regularly in accordance with the provisions of the Act.

15) The success of the cases does not arise out of registration of a FIR, or filling a charge
sheet. It is essential that the case be expeditiously decided as it is often seen that the
case prolongs so much that it amounts to the harassment for the decoy volunteer or for
the various witnesses involved in the case. The delay may increase the chances
witnesses turning hostile or the decoy volunteer losing hope. So it is desirable that a
stipulated time is fixed for deciding the case.

16) It has been seen that the evidence in case of PC and PNDT cases is built up of primary
and secondary evidences To a very large extent this evidence is to be derived from the
records that are, necessarily, to be maintained at the genetic clinic, genetic laboratory
or the genetic centre. Thus these reports should be regularly monitored and audited,

136
 along with the data from ultrasound centres, data of Birth-Death registration and
Pregnancy registration.

Thus sex selective abortion is totally illegal, unconstitutional, and a criminal act on the
part of the doctor. It is a crime against women encouraged by professionals. The gradual
shift of the control over health from public institutions to private medical shops has ensured
that business interests are higher than the public health.

Apart from the problem of ineffectiveness, the law poses another serious problem and
that is –who should be punished? Though the Act says that the Medical Practitioner needs to
be punished, but leaves the question of revocation of licence to the Indian Medical
Association which rarely take an action in such situations.52

The efficacy of the law can be seen from the following facts of the conviction rates of
the offenders against this Act. It is a matter of great shame that in Punjab even after 7 years
of the new Act’s passage the male- female sex ratio is as low as ever, it is just 798 females
per1000 males as on 20 July,2009 .53

At the national level too the results of this Act are the same. There are 25,569
registered ultrasound clinics in the country. No one knows how many are unregistered.
Despite all the hue and cry about the missing daughters, till the end of January this year just
308 cases had been prosecuted but not a single person has been convicted. Eighty per cent of
the cases registered are for non-registration of the ultrasound clinics or machine.

It is clear that this Act has failed to meet the desired results as at an all India level just
13 convictions have been reported in this year as far as this Act is concerned. The data
released by the government gives a shocking insight into how the country, including rogue
states of Haryana, Punjab and Delhi, continue with its lackadaisical approach in the
implementation of the ‘strengthened’ Pre Conception and Pre-Natal Diagnostic Techniques
Act. Just 13 cases of conviction under the PNDT Act were reported in 2010 exposing the

52
Radhakrishnan, Andal, “Female Infanticide and Foeticide: A Legal Perspective”
,Avashesh,NLSIU,Series-1,Vol-1,Centre of Child and Law,Banglore.
53
Department of Family Welfare,Chandigarh.

137
complete failure of all state governments in effective implementation of the law to prevent
the killing of unborn daughters while also bringing related schemes under the scanner.54The
details of convictions under the Act in the entire country prove that how majority of culprits
of the unborn girl child continue to get away scot free.55 As admitted by the parliament
officials it would be absurd to even think that only these many cases of sex determination
took place last year, meaning that the majority of culprits got away despite the PNDT Act
enacted and further amended in2003 with the objective of prohibiting sex selection before or
after conception, regulation of pre-natal diagonostic techniques and prevention of their
misuse for sex determination leading to female foeticide.56The government’s move to
further strengthen the Act57 will prove to be fruitful is yet to be seen. The history suggests
that it will not help in raising the ever falling sex ratio. The law is there but its
implementation is not taking place. It need not be made stricter what is essential is that what
is already there it should be strictly implemented. It is rightly said that the law if not
implemented properly becomes a mere paper tiger. The present law has done this only, law
no doubt is there but there are half hearted attempts which are made towards its
implementation. If at all the culprit doctors are nabbed there is a pressure from the law
makers themselves that the said person should be left. It is a shame that the law breakers are
under the aegis of the law makers themselves.58

Whatever are the provisions of law and no matter how stringent they are made, the
views of the Indian people cannot undergo a change so easily.The law has not been able to
deter the people from their mad rush to beget a son. The assimilation of patriarchal values,
dowry system alongwith the dichotomy between law and practice have rendered the abortion
and Pre-Diagnostic Technique law ineffective. This situation can be altered by filling in the
gaps in the law, making not only the PCPNDT Act stronger but also bringing about a change
in mindset of people. Sarvodaya Leader Vinobha Bhave likened the people to numeral

54
Vibha Sharma,”Just 13 persons convicted under PNDT Act in 2010”,The Tribune (4 August,2011).
55
Ibid.
56
Ibid.
57
Ibid..
58
The then Health Minister,Punjab-Kumari Laxmi Kanta Chawla in an interview with the researcher
on 11 May 2011.

138
1(one) while the government to 0 (zero). He said the value of zeroes placed after one
increases but no value of zero is there without one.59 Awakening of the collective
consciousness is the need of the day.Change of heart and attitude is what is needed.60

For the law alone cannot fight this evil, the problem of sonship is engrained in
people and people alone can change it. It becomes further obvious from the field study
conducted by the researcher to inter alia measure the gap between theory and practice.

59
Arora Balwinder ,Female Foeticide in Punjab:A Sociological Study, Guru Nanak Dev University,2009,P-
178.
60
Gandhi Muneesha, Justice for Women,Concerns and Expressions, Universal Law
Publishing,Delhi,2003,p-14.

139