Supreme Court of India
Writ Petition (civil) 301 of 2000
PETITIONER:
Centre for Enquiry Into Health And Allied Themes (CEHAT) & Others
RESPONDENT:
Union of India & Others
DATE OF JUDGMENT: 10/09/2003
BENCH: M.B. SHAH & ASHOK BHAN.
JUDGMENT: 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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