Indian society is patriarchal in nature, amongst other societies in the world. Sex determination has its roots from decades where sons are preferred over daughters. After the introduction of various techniques to determine the sex of the foetus, the sex ratio kept declining in the 1980s. The sex ratio which was 934 in 1981 drastically declined over the next 10 years to become 927 in 1991.[1] During this period the ratio was lowest since independence. Even after the passing of various rules, and measures taken by activists and the government, female foeticide kept increasing. Maharashtra was the first state to ban sex determination by passing a law in 1988.
Later, the Pre Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act was passed by the Parliament of India in 1994 which was enacted in 1996. This was introduced to regulate:
- The implementation of pre-natal diagnostic techniques for only the detection of biological or metabolic disorders or chromosome abnormalities or other syndromes or sex-related malformations; and
- To prevent misuse of these techniques for the purpose of pre-natal sex determination leading to female foeticide.
Table of Contents
2003 Amendment
Innovative technologies in the field of health care made it easier for sex selection and its related abortions. Regulations were necessary to contain the use of such technologies for wrong purposes. A PIL was filed in 2000 regarding the same and the Act was amended in 2002 which came into effect from 2003 to arrest the declining sex ratio. This was recalled as the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act. The various implications of the amendment:
- The main reason behind the amendment was to bring the technique of pre conception within the act’s ambit and prohibit sex selection.
- Regulating the scope, functions, and sale of ultrasound machines.
- Formation of the state supervisory board and empowering the central supervisory board.
- Creating stricter laws and stringent punishments.
Provisions of the Act
Section 3 of the Act details the regulation of Genetic Counseling Centres, Genetic Laboratories, and Genetic Clinics. According to this section, all genetic centres, laboratories, and clinics have to be registered, and certain procedures and rules have to be adhered to on the sale of machines and employment.
No prenatal diagnostic techniques shall be conducted except for the exceptions as mentioned under Section 4.
According to Section 6 of the Act, determination of sex is strictly prohibited in the country by any person or laboratory. No person shall, by any means whatsoever induce or allow the selection of gender before or after conception.[2] The sex of the fetus cannot be communicated in any manner.
Section 7 of the Act details the constitution of the Central Supervisory Board. Sections 8 to 15 mentions the composition of the board, the term of office of members, and meetings of the board. Also mentions vacancies, disqualification, and reappointment.
The board has various functions which are elucidated in Section 16 as follows:
- To advise the central government on policies regarding the use of the pre-natal diagnostic technique, pre-conception technique, and against their misuse.
- Recommend any changes in the Act to the central government and also review and monitor the implementation of the Act and rules.
- Build a general understanding among the public about sex selection and sex determination contributing to female feticide.
- Set the ethical guidelines for people operating at the Centres for Genetic Therapy, Genetic Labs, and Genetic Clinics.
- To administer the impact of the different bodies incorporated under the Act and take cognizance for its successful functioning.
Section 16A addresses the functions of the lower-level boards that are the State Supervisory Board and Union territory Supervisory Board. These boards were constituted after amendments were made to the provision. This section enlists who can be the members of the committee and their functions.
As per Section 17, the Central Government shall also appoint appropriate authorities and advisory committees for the Union Territories. Similarly, the State Government appoints authorities for the whole state or a part of it. These authorities are responsible for ensuring the proper functioning of the clinics, centres, and laboratories, investigate complaints, and take appropriate measures to minimize female foeticide. They are also responsible to take legal actions against any deviations and create public awareness against the practice of sex selection and sex determination. Section 17A enlists the powers of the appropriate authorities.
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Registration
Registration of Genetic Counseling Centres, Genetic Laboratories, or Genetic Clinics is mandatory under Section 18. There are specifications given for the same:
- No genetic laboratory, clinics, or centres can render any services which have an ultrasound or imaging machine or scanner or any other technology capable of determining the sex of the foetus unless duly registered.
- Application for registration should be made to the appropriate authority along with the registration fees prescribed which is INR 3000-4000.
- Registration may be carried out only if the Competent Authority is satisfied that a Centre, Laboratory, or Clinic is in a position to provide services, maintain equipment and standards as may be prescribed.
Certificate for registration
A certificate for registration is granted to the applicant only if all the registration conditions are satisfied. As given under section 19:
- The competent authority shall keep the request of the application and validate that the applicant has complied with all the guidelines.
- After verification by the authorities and review by the advisory committee, if the application is unsatisfactory, it would be rejected.
- Every registration certificate has to be renewed after a particular period with payment of fees.
- The document of registration should be shown in a clear statement by the licensed Genetic Counselling Centre, the Genetic Laboratory, or the Genetic Clinic.
Cancellation or suspension of registration
Section 20 enlists the following:
- The responsible authority must, on its own or by some appeal, notify the biological laboratory, centre, or facility of the reasons why their registration should not be revoked or suspended. If the committee is not satisfied with the applicant’s justification, the committee might well suspend its certification for a specific period or reject its application.
- The governing body also has the option of curtailing or rescinding the application without giving any notification in view of public interest.
According to Section 21, the Genetic Counseling Centre, Genetic Laboratory or Genetic Clinic may apply for an appeal against such order within 30 days of the date of receipt of an order of suspension or cancellation
- To the central government where the appeal is against the central appropriate authority.
- To the state government where the appeal is against the state appropriate authority.
Offences and penalties
Section 22 states that any person or any genetic centre, clinic, or laboratory which has an ultrasound machine or imaging machine or scanner or any other technology capable of undertaking determination of sex of the foetus or sex selection shall not issue or publish advertisement in any forms regarding the facilities available. Any person who violates this rule shall be imprisoned for up to 3 years and also fined ten thousand rupees.
As per Section 23, any medical geneticist, gynecologist, licensed medical practitioner or any person who operates a Genetic Counselling Facility, a Genetic Laboratory or a Genetic Treatment centre or is working in such a Place, Laboratory, or Clinic and performs any kind of clinical or technical services to or at such a Centre, Laboratory or Clinic, whether honorary or otherwise, and who contravenes any of the provisions of this Act or the laws laid down therein shall be punished with imprisonment for a period that may extend to three years and with fine which may extend to ten thousand rupees and any subsequent conviction, with imprisonment for a term which might also extend to five years and a fine which may extend to fifty thousand rupees.[3] If any person defaults, then the name is reported by the appropriate authority to the State medical council to take immediate and stringent action against them along with suspension of the enrollment shall be imprisoned for three to five years and fined an amount of fifty thousand rupees extending up to one lakh rupees. This applies to a woman who was compelled to undergo such treatment.
Every offence under this Act is cognizable, non-bailable, and non-compoundable. All documentation, charts, forms, reports, letters of consent and all other records that are needed to be preserved pursuant to this Act should be maintained for a period of 2 years. The governing body therefore has the right to inspect and seize those documents, if it has any basis to suspect that a crime has been committed.
Detailed explanation and procedures of the provisions is given in the Pre-Conception and Pre Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1994. These rules must be adhered to and any deviation is strictly penalised.
Issues
The constitutional validity of the Act and certain provisions were questioned in various cases. However, in Saksham Foundation Charitable Society v. Union of India [4], the court held that the PCPNDT Act did not violate Articles 14 and 21 of the Constitution of India, and that the object of the statute is to ensure that diagnostic techniques are not misused for sex determination and sex selection.
In the case of Voluntary Health Association of Punjab v. Union of India & Ors [5], the Supreme Court issued directions for the effective implementation of the PCPNDT Act. As the Act was not implemented effectively by a number of state governments, the court issued notice to the State Governments seeking their response on the implementation of the Act, and orders of the court.
Conclusion
After the Amendment in 2003, banning sex selection and sex determination before and after conception, there has been a gradual increase in sex ratio from 933 to 943 in ten years. Although there has been an increase in the sex ratio, a number of cases have been registered violating the Act. This implies that just the implementation of the Act would not be sufficient. Society has to be made aware of the importance of a girl child and prevent female foeticide. Stringent punishment and permanent cancellation of the registration should be enforced. Genetic labs, centres, and laboratories should be regulated strictly and parents should also be punished if they opt for sex selection or sex determination.
References
[1] Census of India, “Provisional Population Total Chapter 6” (Paper 1 of 2001).
[2] The Pre-Conception and Pre Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, s. 6(c).
[3] Id., s. 23(1).
[4] (2014) 5 All LJ 496.
[5] (2013) 4 SCC 1.
BY KRISHA AJAY SHAH | VIT SCHOOL OF LAW, CHENNAI