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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
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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
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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.
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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.
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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
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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
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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. Page 8
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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 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.Page 9
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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 there under 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
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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.Page 11
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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: -Page 12
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“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 dataorientation.
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-
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Natal Diagnostic Techniques (Prohibition on SexSelection) 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 others1
, 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.
1 (2001) 5 SCC 577Page 14
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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
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despite the same being a criminal offence, a two Judge Bench in State of H.P. v. Nikku Ram and
others2
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 :
“यत्र ना्यरस्तुपूज्यन्ते रमन्ते
तत्र देवता:” [“Yatra naryastu pujyante
ramante 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
2 (1995) 6 SCC 219Page 16
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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 others3
, 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.
3 AIR 1997 SC 699Page 17
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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.”Page 18
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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 prenatal 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,Page 19
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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 allPage 20
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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
Karnataka4
: -
“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
4 (1997) 7 SCC 110Page 21
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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]Page 22
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15. In Madhu Kishwar v. State of Bihar5
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
5 AIR 1996 SC 1864Page 23
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“Shloka”. The second line of the same which is also
significant is as follows: -
“यत्र तास्तुन पूज्यन्ते स्वारस्तत्राफला: िक्रया:”
[Yatra tāstu na pūjyante sarvāstatraphalāh kriyāh]
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:
“भतृभातृिपतृज ाितशवशू शवशु रदे वरै : |
बन धुिबशच िस्त्रय: पूज्या: भूषणाचछादनाशनै: ||”
[Bhārtr bhratr pitrijnāti śwaśrūswaśuradevaraih|
Bandhubhiśca striyah pūjyāh bhusnachhādanāśnaih||].
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.”
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20. Yet again, the sagacity got reflected in following
lines: -
“अतुलं यत्र तत्तेज: स्वरदेव रीरजम शशशशश श |
एकस्थं तदभून्नारी व्याप्तलोकत्रयं ित्वषा ||”
[Atulam yatra tattejah śarvadevasarirajam| Ekastham
tadabhūnnāri vyāptalokatrayam tvisā||]
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
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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 sub serve
the purpose. The authorities of the Government, the
Non-Governmental Organisations and other volunteers
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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
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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
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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.
