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Writ Petition (Civil) No. 349 of 2006. Case: Voluntary Health Association of Punjab Vs Union of India (UOI) and Ors.. Supreme Court (India)

Judgment Cited in 2 Precedent Map Related
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Case NumberWrit Petition (Civil) No. 349 of 2006
CounselFor Appellant: Colin Gonsalves, Sr. Adv., Jubli and Jyoti Mendiratta, Advs. and For Respondents: H.P. Rawal, ASG, P.N. Misra, Sr. Adv., Manish Singhvi and Ajay Bansal, Advs., Manjit Singh, AAG, S.W.A. Quadri, M. Khairati, Sunita Sharma, Asha G. Nair, D.S. Mahra, Gunwant Dara, Seema Thukural, Seema Thapliyal, Abhisth Kumar, Archana Singh, Amit ...
JudgesDipak Misra and K. S. Panicker Radhakrishnan, JJ.
IssueDowry Prohibition Act; Medical Termination of Pregnancy Act, 1971; Pre-Natal Diagnostic Techniques (Prohibition on Sex-Selection) Act, 1994 - Sections 7, 16A; Pre-Natal Diagnostic Techniques (Prohibition on Sex-Selection) Rule, 1996 - Rules 3(2), 3, 3A, 5(1), 9(8), 13; Constitution of India - Article 15(2); Code of Criminal Procedure (CrPC)
CitationAIR 2013 SC 1571, 2013 (3) ALD 144, 2013 (2) AWC 1688 (SC), ILR 2013 (1) Ker 901, JT 2013 (3) SC 614, 2013 (3) KarLJ 382, 2013 (2) RCR 287 (Civil), 2013 (3) SCALE 195, 2013 (4) SCC 1, 2013 (99) ALR 882, 2013 (3) BomCR 555, 2013 (4) CDR 882 (SC)
Judgement DateMarch 04, 2013
CourtSupreme Court (India)

Order:

Dipak Misra, J.

  1. Indian society's discrimination towards female child still exists due to various reasons which has its roots in the social behaviour and prejudices against the female child and, due to the evils of the dowry system, still prevailing in the society, in spite of its prohibition under the Dowry Prohibition Act. The decline in the female child ratio all over the country leads to an irresistible conclusion that the practice of eliminating female foetus by the use of pre-natal diagnostic techniques is widely prevalent in this country. Complaints are many, where at least few of the medical professionals do perform Sex Selective Abortion having full knowledge that the sole reason for abortion is because it is a female foetus. The provisions of the Medical Termination of Pregnancy Act, 1971 are also being consciously violated and misused.

  2. 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.

  3. This Court, as early as, in 2001 in Centre for Enquiry into Health and Allied Themes v. Union of India (2001) 5 SCC 577 had noticed the misuse of the Act and gave various directions for its proper implementation. Non-compliance of various directions was noticed by this Court again in Centre for Enquiry into Health and Allied Themes v. Union of India (2003) 8 SCC 398 and this Court gave various other directions.

  4. 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.

  5. 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.

  6. 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.

  7. The Union of India has filed an affidavit in September 2011 giving the details of the prosecutions launched under the Act and the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition on Sex-Selection) Rules, 1996 (for short 'the Rules'), up to June 2011. We have gone through the chart as well as the data made available by various States, which depicts a sorry and an alarming state of affairs. Lack of proper supervision and effective implementation of the Act by various States, are clearly demonstrated by the details made available to this Court. However, State of Maharashtra has comparatively a better track record. Seldom, the ultrasound machines used for such sex determination in violation of the provisions of the Act are seized and, even if seized, they are being released to the violators of the law only to repeat the crime. Hardly few cases end in conviction. Cases booked under the Act are pending disposal for several years in many Courts in the country and nobody takes any interest in their disposal and hence, seldom, those cases end in conviction and sentences, a fact well known to the violators of law. Many of the ultra-sonography clinics seldom maintain any record as per rules and, in respect of the pregnant women, no records are kept for their treatment and the provisions of the Act and the Rules are being violated with impunity.

  8. 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...

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