Centre
for Enquiry in to Health and Allied Themes (Cehat) & Ors Vs. Union of India & Ors [2003] Insc 444 (10 September 2003)
M.B.
Shah & Ashok Bhan. Shah, J.
It is
an admitted fact that in Indian Society, discrimination against girl child
still prevails, may be because of prevailing uncontrolled dowry system despite
the Dowry Prohibition Act, as there is no change in the mind-set or also
because of insufficient education and/or tradition of women being confined to
household activities. Sex selection/sex determination further adds to this
adversity. It is also known that number of persons condemn discrimination
against women in all its forms, and agree to pursue, by appropriate means, a
policy of eliminating discrimination against women, still however, we are not
in a position to change mental set-up which favours a male child against a
female. Advance technology is increasingly used for removal of foetus (may or
may not be seen as commission of murder) but it certainly affects the sex
ratio. The misuse of modern science and technology by preventing the birth of
girl child by sex determination before birth and thereafter abortion is evident
from the 2001 Census figures which reveal greater decline in sex ratio in the
0-6 age group in States like Haryana, Punjab, Maharashtra and Gujarat, which are economically better off.
Despite
this, it is unfortunate that law which aims at preventing such practice is not
implemented and, therefore, Non-Governmental Organisations are required to
approach this Court for implementation of the Pre-natal Diagnostic Techniques
(Regulation and Prevention of Misuse) Act, 1994 renamed after amendment as
"The Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of
Sex Selection) Act" (hereinafter referred to as 'the PNDT Act') which is
the normal function of the Executive.
In
this petition, it was inter alia prayed that as the Pre-natal Diagnostic
Techniques contravene the provisions of the PNDT Act, the Central Government
and the State Governments be directed to implement the provisions of the PNDT
Act
(a) by
appointing appropriate authorities at State and District levels and the
Advisory Committees;
(b)
the Central Government be directed to ensure that Central Supervisory Board
meets every 6 months as provided under the PNDT Act; and
(c) for
banning of all advertisements of pre-natal sex selection including all other
sex determination techniques which can be abused to selectively produce only
boys either before or during pregnancy.
After
filing of this petition, notices were issued and thereafter various orders from
time to time were passed to see that the Act is effectively implemented.
A] On
4th May 2001, following order was passed:— "It is unfortunate that for one
reason or the other, the practice of female infanticide still prevails despite
the fact that gentle touch of a daughter and her voice has soothing effect on
the parents. One of the reasons may be the marriage problems faced by the
parents coupled with the dowry demand by the so-called educated and/or rich persons
who are well placed in the society. The traditional system of female
infanticide whereby female baby was done away with after birth by poisoning or
letting her choke on husk continues in a different form by taking advantage of
advance medical techniques.
Unfortunately,
developed medical science is misused to get rid of a girl child before birth.
Knowing full well that it is immoral and unethical as well as it may amount to
an offence, foetus of a girl child is aborted by qualified and unqualified doctors
or compounders. This has affected overall sex ratio in various States where
female infanticide is prevailing without any hindrance.
For
controlling the situation, the Parliament in its wisdom enacted the Pre-natal Diagonstic
Techniques (Regulation and Prevention of Misuse) Act, 1994 (hereinafter
referred to as "the PNDT Act"). The Preamble, inter alia, provides
that the object of the Act is to prevent the misuse of such techniques for the
purpose of pre-natal sex determination leading to female feoticide and for
matters connected therewith or incidental thereto.
The
Act came into force from 1st
January, 1996.
It is
apparent that to a large extent, the PNDT Act is not implemented by the Central
Government or by the State Governments. Hence, the petitioners are required to
approach this Court under Article 32 of the Constitution of India. One of the
petitioners is the Centre for Enquiry Into Health and Allied Themes (CEHAT)
which is a research center of Anusandhan Trust based in Pune and Mumbai. Second
petitioner is Mahila Sarvangeen Utkarsh Mandal (MASUM) based in Pune and Maharashtra and the third petitioner is Dr. Sabu
M. Georges who is having experience and technical knowledge in the field. After
filing of this petition, this Court issued notices to the concerned parties on
9.5.2000.
It
took nearly one year for the various States to file their affidavits in
reply/written submissions. Prima facie it appears that despite the PNDT Act
being enacted by the Parliament five years back, neither the State Governments
nor the Central Government has taken appropriate actions 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 following directions are 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 pre- natal determination of sex and female foeticide through appropriate
releases / programmes in the electronic media. This shall also be done by
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 vigor and zeal the PNDT
Act and the Rules framed in 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.
II.
Directions to the Central Supervisory Board (CSB)
1.
Meetings of the CSB will be held at least once in six months. [Re. Proviso to
Section 9(1)] The constitution of the 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. The
CSB shall review and monitor the implementation of the Act. [Re. Section 16(ii)].
3. The
CSB shall issue directions to all State/UT.
Appropriate
Authorities to furnish quarterly returns to the 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. The
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.
[Re.
Section 16]
5. The
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 public at large can know about it.
6. The
CSB will require medical professional bodies/associations to create awareness
against the practice of pre-natal determination of sex and female foeticide and
to ensure implementation of the Act.
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 Authority in
discharge of its 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 for the work assigned
to them.
2. All
State Governments/UT Administrations are directed to publish a list of the
Appropriate Authorities in the print and electronic media in its respective State/UT.
3. All
State Governments/UT Administrations are directed to create public awareness
against the practice of pre-natal determination of sex and female foeticide
through advertisement in the print and electronic media by hoarding and other
appropriate means.
4. All
State Governments/UT Administrations are directed to ensure that all State/UT
appropriate Authorities furnish quarterly returns to the 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.
IV.
Directions to Appropriate Authorities
1.
Appropriate Authorities are directed to take prompt action against any person
or body who issues or causes to be issued any advertisement in violation of
section 22 of the Act.
2.
Appropriate Authorities are directed to take prompt action against all bodies
specified in section 3 of the Act as also against persons who are operating
without a valid certificate of registration under the Act.
3. All
State/UT Appropriate Authorities are directed to furnish quarterly returns to
the 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 including bodies using
ultrasound machines.
(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.
The
CSB and the State Governments/Union Territories are directed to report to this
Court on or before 30th
July 2001. List the
matter on 6.8.2001 for further directions at the bottom of the list." B] Inspite
of the above order, certain States/UTs did not file their affidavits. Matter
was adjourned from time to time and on 19th September, 2001, following order was passed:—
"Heard the learned counsel for the parties and considered the affidavits
filed on behalf of various States.
From
the said affidavits, it appears that the directions issued by this Court are
not complied with.
1. At
the outset, we may state that there is total slackness by the Administration in
implementing the Act.
Some
learned counsel pointed out that even though the Genetic Counselling Centre,
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. In our
view, 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 authorised 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 of 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.
2. It
has been pointed out that the States/Union Territories have not submitted
quarterly returns to the Central Supervisory Board on implementation of the
Pre- Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act,
1994 (hereinafter referred to as "the Act"). Hence it is directed
that the quarterly returns to Central Supervisory Board should be submitted
giving the following information:-
(a)
Survey of Centres, Laboratories/Clinics,
(b)
Registration of these bodies,
(c)
Action taken against unregistered bodies,
(d)
Search and Seizure,
(e)
Number of awareness campaigns, and
(f)
Results of campaigns"
C] On 7th November, 2001, learned counsel for the Union of
India stated that the Central Government has decided to take concrete steps for
the implementation of the Act and suggested to set up National Inspection and
Monitoring Committee for the implementation of the Act. It was ordered
accordingly.
D] On 11th December, 2001, it was pointed out that certain
State Governments have not disclosed the names of the members of the Advisory
Committee. Consequently, the State Governments were directed to publish the
names of advisory committee in various districts so that if there is any
complaint, any citizen can approach them. The Court further observed thus:—
"For implementation of the Act and the rules, it appears that it would be
desirable if the Central Government frames appropriate rules with regard to
sale of ultrasound machines to various clinics and issue directions not to sell
machines to unregistered clinics.
Learned
counsel Mr. Mahajan appearing for Union of India submitted that appropriate action
would be taken in this direction as early as possible.""
E] On March 31, 2003, it was pointed out that in
conformity with the various directions issued by this Court, the Act has been
amended and titled as "The Pre-conception and Pre-natal Diagnostic Techniques
(Prohibition of Sex Selection) Act". It was submitted that people are not
aware of the new amendment and, therefore, following reliefs were sought:—
a) direct
the Union of India, State Governments / UTs and the authorities constituted
under the PNDT Act to prohibit sex selection techniques and its advertisement
throughout the country;
b) direct
that the appropriate authorities shall also include "vehicles" with
ultra sound machines etc., in their quarterly reports hereinafter as defined
under Section 2(d);
c) any
person or institution selling Ultra Sound machine should provide information to
the appropriate State Authority in furtherance of Section 3-B of the Amended
Act;
d) direct
that State Supervisory Boards be constituted in accordance with the amended
Section 16A in order to carry out the functions enumerated therein;
e) direct
appropriate authorities to initiate suo moto legal action under the amended
Section 17(iv)(e);
f) direct
that the Central Supervisory Board shall publish half yearly consolidated
reports based on the quarterly reports obtained from the State bodies. These
reports should specifically contain information on:
1)
Survey of bodies and the number of bodies registered.
2)
Functioning of the regulatory bodies providing the number and dates of meetings
held.
3)
Action taken against non-registered bodies inclusive of search and seizure of
records.
4)
Complaints received and action taken pursuant thereto.
5)
Nature and number of awareness programmes.
6)
Direct that the Central Supervisory Board shall carry out all the additional
functions as given under the amended Section 16 of the Act, in particular, to
oversee the performance of various bodies constituted under the Act and take
appropriate steps to ensure its proper and effective implementation.
As
against this, Mr. Mahjan learned counsel appearing for the Union of India
submits that on the basis of the aforesaid amendment, appropriate action has
already been taken by Union of India for implementation and almost all State
Governments/UTs are informed to implement the said Act and the Rules and the
State Governments/UTs are directed to submit their quarterly report to the
Central Supervisory Board.
Considering
the amendment in the Act, in our view, it is the duty of the Union Government
as well as the State Governments/UTs to implement the same as early as
possible." F] At the time of hearing, learned counsel for the petitioners
submitted that appropriate directions including the steps which are required to
be taken on the basis of PNDT Act and the suggestion as given in the written
submission be issued.
On
this aspect, learned counsel for the parties were heard.
In
view of the various directions issued by this Court, as quoted above, no
further directions are required except that the directions issued by this Court
on 4th May, 2001, 7th November, 2001, 11th December, 2001 and 31st March, 2003
should be complied with. The Central Government / State Governments / UTs are
further directed that:—
a) For
effective implementation of the Act, information should be published by way of
advertisements as well as on electronic media. This process should be continued
till there is awareness in public that there should not be any discrimination
between male and female child.
b) Quarterly
reports by the appropriate authority, which are submitted to the Supervisory
Board should be consolidated and published annually for information of the
public at large.
c)
Appropriate authorities shall maintain the records of all the meetings of the
Advisory Committees.
d) The
National Monitoring and Inspection Committee constituted by the Central
Government for conducting periodic inspection shall continue to function till
the Act is effectively implemented. The reports of this Committee be placed
before the Central Supervisory Board and State Supervisory Board for any
further action.
e) As
provided under Rule 17(3), public would have access to the records maintained
by different bodies constituted under the Act.
f)
Central Supervisory Board would ensure that the following States appoint the
State Supervisory Board as per the requirement of Section 16A.
1. Delhi
2. Himachal
Pradesh
3.
Tamil Nadu
4. Tripura
5.
Uttar Pradesh.
g) As
per requirement of Section 17(3)(a), the Central Supervisory Board would ensure
that the following States appoint the multi-member appropriate authorities:
1. Jharkhand
2. Maharashtra
3. Tripura
4.
Tamil Nadu
5.
Uttar Pradesh
It
will be open to the parties to approach this Court in case of any difficulty in
implementing the aforesaid directions.
The
Writ Petition is disposed of accordingly.
In
view of the aforesaid order, pending IAs have become infructuous and are
disposed of accordingly.
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