The glorification of women in the Indian society is perhaps self-explanatory and evident from the string of Goddesses and festivals celebrating their exhalation. Yet members of the same gender, those found on the realms of this country in their daily lives, “if” born are socialized to internalize the social victimhood imposed on them. The title indicates the code word used by Doctors and quacks in illegal clinics where illegal abortions are done to state the sex of the foetus. Foeticide or the very act of pre-natal sex determination and consequent abortion of such an infant premised on the female gender is an example of such dichotomy.
There are various laws to safeguard and protect women but even after having such vigorous laws, crime against women continues to increase. Either these laws are not strong enough or they are not practically executed in a manner which is required in our society. The implementation of the laws are that for one person to get justice it could easily take up-to 10, 20 or maybe 30 years. I attended a seminar where one of the speakers Dr.Monika Rana, Director, Delhi Family Welfare said that she was asked to testify in a case which was 17 years old which amounts to travesty of justice.
There are many discrepancies in existing laws which delays justice to the victims. It is high time that our judiciary system should make major amendments in existing laws and act beyond such discrepancies and should take strong steps in favour of women and girl child.
Abortion of female fetuses is presumed to be both practical and economical since the prospect of having to pay dowry to the future bridegroom of a daughter or the lack of a male successor to carry forth the familial legacy, makes female foeticide all the more acceptable in India. Sons are seen to offer security to their families and are anointed as the sole performer of last rites for the souls of deceased members of the family. Though female foeticide has been penalised yet the belligerent practice remains prevalent in the underbelly of the Indian sub-continent .
The Pre-Conception and Pre-Natal Diagnostic Techniques (Regulation and Prevention of was passed with hopes of combatting the practice of female foeticide in the country and ban the rather superstitious use of Pre-natal diagnostic techniques. Another enactment besides the realm of the Indian Penal Code, 1860 is the Medical Termination of Pregnancy Act, 1971 which conceived the notion of allowing the pregnant woman of deciding whether or not to carry forth pregnancy. Nevertheless, this well-meaning piece of social legislation remains fairly ornamental in terms of commanding implementation.
The United Nations too recognized the malaise of female foeticide wherein the General Assembly in Resolution No.52/106 has observed to have expressed concerns way back in 11.2.1998 about prenatal sex selection, female infanticide and female genital mutilation. The said Resolution urged all States to enact and enforce legislation protecting girls from all forms of violence, including female infanticide and prenatal sex selection. The United Nations Fourth World Conference on Women in September, 1995 adopted the Beijing Declaration and Platform for Action.
The said Platform for Action identified “violence against women” to “include forced sterilisation and forced abortion, coercive/forced use of contraceptives, female infanticide and prenatal sex selection”. It urged Governments to “enact and enforce legislation against the perpetrators of practices and acts of violence against women, such as female genital mutilation, female infanticide, prenatal sex selection and dowry-related violence”. Furthermore Governments were encouraged to “Eliminate all forms of discrimination against the girl child and the root causes of son preference, which result in harmful and unethical practices such as prenatal sex selection and female infanticide; this is often compounded by the increasing use of technologies to determine fetal sex, resulting in abortion of female fetuses.
The ignominious crime against women is female foeticide is nothing but murder of a female fetus, in blatant denial of their most basic and fundamental right to life as enshrined under Article 21. According to statistics around 10 million female fetuses have been illegally aborted since the 1990’s and 5, 00,000 girls were killed every year due to female foeticide. Also, according to Alliance Defending Freedom India, over 2000 girls are killed in the womb every day and 12 million girls have gone missing in the last three decades. The state with the highest number of feticides is Gujrat and probably the reason why our Hon’ble Prime Minister Sri. Narendra Modi, emphasizes and propagates the slogan "Beti Bachao, Beti Padhao”.
The Child Sex Ratio is significantly higher in western region, particularly North-Western states such as Haryana and Punjab thus resulting in the trend of bringing brides from Assam and Kerala as the female population is dwindling.
Ultrasound was introduced in India in late 1970s, which became immensely popular as it was used to determine the sex of the fetus. When the government became aware of the fact that ultrasound is being used as a killing machine to eliminate the female fetuses rather than helping in understand the fetus health and detect the problems in pregnancy, they passed a Pre-Conception and Pre- Natal Diagnostic Techniques Act (1994). According to this law, it became illegal in India to determine the sex of the fetus before or after conception.
It regulated the use of Pre-Natal Diagnostic Techniques like ultrasound only for medical reasons for example genetic abnormalities, sex-linked disorders etc. The proliferation of the technology is resulting in a catastrophe in the form of female foeticide leading to severe imbalance in child sex ratio and sex ratio at birth. The Centre is duty bound to intervene in such a case to uphold the welfare of the society, especially of the women and the children. The above-mentioned Act was enacted with a purpose to ban the use of sex selection techniques before or after conception; prevent the misuse of prenatal diagnostic techniques for sex selection abortions and to regulate such techniques.
It is mandatory to maintain proper record in respect of use of ultrasound machines under the Act. For effective implementation of the Act, a hierarchy of Appropriate Authority at State, District and Sub District level is created. In Health & Allied Themes (CEHAT) v. Union of India, (2003) 8 SCC 398, wherein it was directed to constitute National Inspection and Monitoring Committee for conducting inspections. As the sex determination is hatched in secrecy and committed in privacy and as both the parties are hand in glove with each other, therefore it becomes difficult to detect the commission of the offence, hence traps are usually laid or raids are conducted by the inspecting authorities and sometimes non-maintenance of records or incomplete records may provide substantial evidence towards the commission of offence.
Before such technology came, people continued childbearing till they were blessed with desired number of sons. This practice is also called as ‘son meta-preference’ where people give preference to have a son as a child rather than a girl, or if a girl was born either they were poisoned, starved or suffocated to death. Around 63 million missing women were reported in India in last couple of years.
Judgments like Suo Motu v. State of Gujarat, (2009) 1 GLR 64, which dealt with the issue of proper maintenance of records and to the decision rendered by High Court of Rajasthan in S.K. Gupta v. Union of India, wherein it was observed that female infants have also right to live. There is right of still born child to be looked after properly during pregnancy. Once a child is conceived, it has to be treated with dignity. Such right cannot be denied and practice of female foeticide/infanticide is prevailing at large which is illegal and unconstitutional.
At some places in India, women have always been considered as the subservient gender, which makes birth of a boy more valuable while on the other hand an earthen pot is smashed or bust into pieces when a girl is born which signifies that a misfortune has occurred in the family. Generous amounts of offerings are made in temples in the hope of getting blessed with a boy but women undergo abortions or try ‘old-wives tale’ to determine or change the sex of the fetus if they are able to determine that the fetus is a girl.
Justice Dipak Misra, in Voluntary Health Association of Punjab v. Union of India and others (2016)10 SCC 265 quite succinctly captures the academic/activist sentiment where he opines:
Female foeticide has its roots in the social thinking which is fundamentally based on certain erroneous notions, egocentric traditions, perverted perception of societal norms and obsession with ideas which are totally individualistic sans the collective good. All involved in female foeticide deliberately forget to realise that when the foetus of a girl child is destroyed, a woman of the 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.
Similarly in a recent case at the Madhya Pradesh High Court in Rajni Lodhi v. State of Madhya Pradesh MCRC 14729 of 2021 through Justice Gurpal Singh Ahluwalia observed,
"We find it imperative that no leniency should be granted at this stage as the same may reinforce the notion that the PC&PNDT Act is only a paper tiger and that clinics and laboratories can carry out sex‐ determination and feticide with impunity. A strict approach has to be adopted if we are to eliminate the scourge of female feticide and iniquity towards girl children from our society."
Leaving the higher echelons of the judiciary aside, even those subsidiary to the High Court and the Supreme Court of India echo the pernicious issue of female foeticide. A recent Delhi Court in State v. Aditya Kandoi & Ors. In Application Nos.3180; 3181 and 3216 through Samar Vishal, Additional Sessions Judge, observed thus:
“In the times when the government is running schemes like "beti bachao, beti padhao" all those who are involved in such nefarious activities needs a strong message that these feudal practices cannot be permitted at any cost. Those who commit such crimes are menace to society. In a civilized society there is no place for such crimes…… Although sex selection in India is banned, the general public perception is that it is easily available in clinics throughout the country and involvement of the companies will not only further aggravate the issue but will diversify the operations of such criminal activities.”
The Pre-Conception and Pre-Natal Diagnostic Technique Act, contains several important sections which are if implemented or executed in a required manner it could really bring a change in a society. For the instance;
Under Section 3A prohibition of sex-selection, the section straight away denies every citizen to perform such test, including a specialist, by himself/herself or by any other person, sex selection on a woman or a man or on both or on any tissue, embryo, conceptus, fluid or gametes derived from either or both of them. Whereas Section 3B Prohibition on sale of ultrasound machine, etc., to persons, laboratories, clinics, etc., not registered under the Act. On the other hand Section 22. Prohibits any advertisement relating to pre-conception and pre-natal determination of sex and punishment for contravention and if any person who contravenes the provisions shall be punishable with imprisonment three years and with fine up-to ten thousand rupees. Section 23 provides for seizure of the equipment, any Medical Practitioner involved in the sex selection procedure can face fine up-to Rs.1,00,000/- and cancellation of the license of Medical Practitioner registered under Medical Counsel of India.
Consequently under Section 25, penalty for contravention of the provisions of the Act or rules for which no specific punishment is provided, if there is no specific punishment provided so, whoever contravenes any of the provisions of this Act shall be punishable with imprisonment for a term which may extend to three months or with fine, which may extend to Rs.1,000/-.
These laws are not only for one individual but if any group or company does anything against the provisions then according to Section 26 Offences by companies of the PCPNDT Act every person who, at the time the offence was committed was in charge of company shall be deemed to be guilty of the offence.
To top it all, gender revealing kits are available online which is only worsening the situation as there is no legal obligation and people can identify the gender of their fetus by themselves.
Abortions are ipso facto legal in India, however abortions which are only based on sex selection are illegal. Legal abortions are performed in the presence of a medical practitioner within the first 7 weeks of pregnancy and only those abortions are legal where the pregnancy is life threatening either to the mother or to the fetus or if pregnancy occurred due to failure of contraception or in the cases to rape or sexual assault.
In rural areas of our country, with an apparent lack of appropriate medical facilities and presence of medical practitioners abortions are carried out in unhygienic manner at the cost of women’s health and safety. The absence of medical professional manifests into an increase in the mortality rate of mothers and severe diseases. Women also take sex selection drugs to change the sex of the fetus but little do they know that these are dangerous to their as well as fetus’s health.
The issue of implementation of the Act has been highlighted by a catena of judgements wherein, the judiciary has time and again lead a clarion call demanding more vigilance from the executive. The Supreme Court in Rekha Sengar v. State of Madhya Pradesh, LL 2021 SC 51, had expressed concern over non-implementation of the 1994 Act, It had observed,
"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 prenatal diagnostic techniques for determination of sex of foetus leading to foeticide”.
In Voluntary Health Assn. of Punjab v. Union of India, (2013) 4 SCC 1, the Supreme Court in its watershed judgment on female foeticide decided it to be the most aggravated form of dehumanization of the human race. The court was observed to have stated that the "Law prohibits it; Scriptures forbid it; philosophy condemns it; ethics deprecate it; morality decries it, and social science abhors it.” It’s time the executive pulled up its socks and tightened the noose around implementation of the PC & PNDT Act. The duality around women with exhalation of deities and contrasting blatant disregard for their basic human rights needs to break the confounds of mere academic debate and reinforce the tenets on which the Constitution of India rests.
(The author credits Adv.Sumedha Sen for helping with the Research.)
[Disclaimer: The views expressed are solely of the author and they do not purport to reflect the opinion or views of LawStreet Journal]
 Ahmad N. Female feticide in India. Issues Law Med. 2010 Summer;26(1):13-29. PMID: 20879612.