Table of Contents

1. Research objectives………………………………………………………………………..3

2. Research Questions……………………………………………………………………......3

3. Literature Review……………………………………………………………………….....5

4. Chapter 1: Introduction……………………………………………………………………8

 1.1: Female foeticide………………………………………………………………8

 1.2: Causes……………………………………………………………………….10
 1.3: The gravity of the situation………………………………………………….11

6. Chapter 2: Acts……………………………………………………………………...
…….13

 2.1: PNDT
Act…………………………………………………………………...13
 2.2: MTP
Act…………………………………………………………………….14

7. Chapter 3: Case Analysis……………………………………………………………….…

16

 3.1: Case Facts……………………………………………………………….

…..16
 3.2: Sections……………………………………………………………….…….17
 3.3:
Analysis……………………………………………………………………..17

1
 8. Chapter 4: Conclusion and Suggestions………………………………………….………
22

9. List of
Cases……………………………………………………………………………...24

10. References………………………………………………………………………………..25

Research Objectives:

1. To understand the meaning of female foeticide.

One can understand the meaning of female foeticide, stages and ways of committing this
crime i.e. after the birth of the child or through abortion.

2. To analyse the causes behind female foeticide.

One can establish causes behind female foeticide from religion to economic crisis, lack of
awareness to orthodox mentality and legal heir to future dependency.

3. To learn about the various acts passed by the government to combat female foeticide.

Mentioned are the acts passed by the government which criminalize and can combat
female foeticide. These include Prenatal Diagnostic Techniques (Regulation And
Prevention ) Act, 2002 which makes sex determination illegal as it can lead to female
foeticide and Medical Termination of Pregnancy Act, 2002 which makes abortion illegal.

4. To learn the exceptions.

Mentioned acts list down a few exceptions in which abortion, ultrasonography and sex
determination can be performed on individuals.

5. To understand the prerequisites for conducting ultrasonography.

According to the PNDT act, prerequisites for conducting ultrasonography include the
proper and accurate filling of forms (F, D and E).

2
6. To understand if PNDTA is constitutional.

Federation of Obstetric and Gynaecological Societies of India V. Union of India and ors.
case along with the arguments from both the sides to understand the constitutionality of
the Act are mentioned

Research question:

1. What is female foeticide?

2. What are the causes behind female foeticide?

3. What are the steps taken by India to combat female foeticide?

4. What are the exceptions to the PNDTA?

5. What are the prerequisites for conducting ultrasonography?

6. Is Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 2002

constitutional?

3
 Literature Review:

1. Global Legal law responses to Prenatal gender identification and sex selection1:

Author: Seema

In this paper, author talks about the causes leading to female foeticide, technologies
involved in sex determination worldwide, steps taken by various governments around the
world to curb down this problem and analysis based on bio-ethical grounds. Policies
developed by governments worldwide are addressed. Through this article, the author
learnt all the factors responsible for female foeticide, how the developed technology i.e.
ultrasonography is dangerous to female foetus and laws are enacted by our Indian
legislature to limit the same.

2. Gender Discrimination fuels Sex Abortion: The impact of the Indian Supreme court on
the implementation and enforcement of the PNDT Act.2

Author: Kristi Lemoine and John Tango

1
Seema,Global Legal law responses to Prenatal gender identification and sex selection, NEVEDALAWJOURNAL,
(Spring, 2013), https://elibrary.slsh.edu.in:2094/HOL/Page?public=true&handle=hein.journals/
nevlj13&div=34&start_page=690&collection=journals&set_as_cursor=0&men_tab=srchresults
2
Kristi Lemoine and John Tanagho, Gender Discrimination Fuels Sex Selective Abortion: The Impact of the Indian
Supreme Court on the Implementation and Enforcement Of The PNDT Act, 15 U. MIAMI INT’L & COMP. L. REV.
203 (2007).
4
 This paper begins with describing the historical discrimination of girls in India, medical
technologies antiquating traditional infanticide, integral actors in the sex selection
scheme and sex selection touches prevalent in India, how sex determination is dangerous
in India, causes behind it and the consequences of sex-selective abortion. Further, the
Acts passed by the government of India to curb the same which include the PNDT Act
and MTP are discussed. Authors analysed the role of the Supreme court, decisions taken
by them, effect that it has on high courts, peoples’ attitude. Through this paper, the author
got a perspective of the Federation of Obstetric and Gynaecological Societies of India V.
Union of India and ors. case which involves the question of the constitutionality of the
PNDT Act. This was very useful for analysing the sections provided under the PNDT
Act.

3. Where have all the young girls Gone? Preconception gender selection in India and the
United States 3

Author: Farell Kanen

This paper mainly compares the situations in India and the U.S.A regarding sex
determination and how this practice is leading to female foeticide. Highlighting, that due
to the legislation adopted for combating female foeticide and sex determination in India,
how the sex-ratio has skewed over the years. This brought international attention. Further
on, this paper addresses why a male child is favoured over a female child in India, the
history of sex-determination and India’s unsuccessful attempts in combating the problem.
Post describing India’s history, the history of sex-determination in the U.S.A is
discussed. In its conclusion, the author puts forth all possible arguments which can be
made for and against gender selection thus analysing these policy arguments. Though this
paper discusses international legislature as well, it was chosen as the relevant arguments
have very well been analysed in this paper, providing the author with a insightful
perspective.

3
Kenan Farrell, Where Have All the Young Girls Gone - Preconception Gender Selection in India and the United
States, 13 IND. INT'L & COMP. L. REV. 253 (2002).
5
 4. Addressing Ableism: Lessons from the problem of female foeticide in India.4

Author: Ramaswamy, Kavana.

In this paper, the causes of female foeticide, abortion and the laws put forth by the
government for combating these problems are discussed. Further, mentioned are the
exceptions given under these Acts for abortion and sex-determination and the loopholes
in the text. It points out that abortion, according to these laws, are allowed in case of
physical and mental disability and how it fails to explain to which extent. Additionally, it
avers the state's obligations towards disabled people. This paper enabled the author to
understand and analyse the exceptions to the laws stated for curbing female foeticide.

5. SC Upholds the constitutionality of section 23 of the PNDT Act.5

Author: Mansi Mehta

This article addresses section 23 of the PNDT Act which states the punishment for
incomplete or improper filling of forms, which are a prerequisite for ultrasonography. In
this case, petitioners have held that it was a clerical error and by punishing them for the
same at par with sex-determination is equal to treating unequals equally. To which SC
opposed and stated it is a prerequisite and the only evidence to investigate if the final
crime has been committed. Further, held the Act constitutional. This helped the author
secure arguments from both sides.

6. Regulatory Instruments On Pre-Conception & Pre-Natal Diagnostic Techniques6

Author: G.L.Singhal, Manmohan Taneja.

4
Kavana Ramaswamy, Addressing Ableism: Lessons from the Problem of Female Feticide in India, 27 TRANSNAT'L
L. & CONTEMP. PROBS. 1 (2017).
5
Mansi Mehta, SC Upholds the constitutionality of section 23 of PNDT Act, CJP, ( May 9, 2019),
https://cjp.org.in/sc-upholds-constitutionality-of-section-23-of-pcpndt-act/
6
G.L.Singhal, Manmohan Taneja, Regulatory Instruments On Pre-Conception & Pre-Natal Diagnostic Techniques,
ABHISHEK PUBLICATIONS, (2019).
6
 This book mentions and explains all the sections of the PC and PNDT Act along with the
effect on people and how awareness can be helpful in this matter. Further, it states all the
High Court and Supreme Court judgements. This has been useful in understanding how
courts have interpreted this act in various cases thus helping the author deal with the
question of constitutionality.

CHAPTER 1: INTRODUCTION

1.1: Female Foeticide:

The widespread availability of prenatal medical diagnosis accompanied by its low cost
have led to a multitude of sex determination resulting in female foeticide due to the
prevailing gender discrimination in the country7. This has progressively skewed sex ratios
from 962/1000 in 1981 to 945/1000 in 1991 to 927/1000 in 2001. 8 For the first time,
gender discrimination was documented in the form of female infanticide by the British in
the 18th century though this discrimination was a part of the society since longer.9 Killing
a child in her early years because of her gender is termed as female foeticide. 10 Forms
adopted for achieving it vary from poisoning, using sedatives, strangulation, feeding the
baby paddy soaked in milk or juice extracted from tobacco leaves, and asphyxiation 11.
Parents sometimes even opt for extended infanticide which refers to providing improper
nutrition and care required by the infant. For instance, giving them very little food thus
letting them die from malnutrition.12 Health care expenses of boys are 2.4 times higher

7
Kenan Farrell, Where Have All the Young Girls Gone? Preconception Gender Selection in India and the United
States, 13 IND. INT'L & COMP. L. REV. 253, 259-60 (2002).
8
5 Jeremy Laurance, Ten Million Girls Aborted As Indians Seek Male Heirs, THE INDEPENDENT (London), Jan.
10, 2006, available at http://www.countercurrents. org/gender-laurancelOO106.htm; Census of India 2001:
Provisional Population Totals: India, available at http://www.censusindia.net/results/prov pop-main. html.
9
Rita Patel, The Practice of Sex Selective Abortion in India: May You Be the Mother of a Hundred Sons, THE
CENTER FOR GLOBAL INITIATIVES, at 2 (1996), available at http://gi.unc.edu/research/pdf/abortion.pdf.
10
Kirsten M. Backstrom, The International Human Rights of the Child: Do They Protect the Female Child?, 30
GEO. WASH. J. INT'L L. & EcON. 541, 544 (1996-1997).
11
Palash Kumar, India Has Killed 10 Million Girls in 20 Years, ABCNEWS (Dec 15, 2006), http://abcnews.go.com/
Healthstory?id-2728976. 20 Hatti et al., supra note 19
12
Hatti et al., supra note 11.
7
 than that of girls. In 1871, the census revealed the sex ratio to be 940/1000 men. 13 In
order to control this activity, the British came up with the Infanticide Act, 1870
criminalizing female infanticide. The wide acceptance of this practice had led to the
conciliation of it which became evident through the Kaira district incident. 1872 census
revealed that there were only 39-53 girls/100 boys among a peasant caste. 14 This was
explicit even in the bedees caste, a branch of Sikhs, Chouhan. 15 Medical developments
have aided this practice by providing the parents with an option of sex determination
resulting in sex-selective abortion16. Development of ultrasonography and amniocentesis
have led to the girl not see the face of this earth. Sex of the fetus is determined through
amniocentesis, chorionic villus sampling or ultrasound post which, parents could opt for
sex-selective abortion.17 Ultrasound is the most common sex-determination technique due
to its wide availability in both rural and urban areas. Its wide usage has increased the
production of these machines by thirty-three times between 1988 and 200318. There were
30,000 clinics eligible to purchase ultrasound machines by May 2001 19. Researchers
concluded that skewness in the sex ratio continued and increased due to sex disclosure
availability. A study has been conducted on various hospitals of Pune between June
1976-1977 from which one hospital reported 700 women who used sex determination out
of who 450 were told that they were carrying a girl child. 430 among these 450 opted for
sex-selective abortion.20 None of the women who were carrying a male child wanted to
go for an abortion. Preimplantation genetic diagnosis of embryo and sperm spotting
through cycometry help in detecting the sex before conceiving thus saving the child from

13
Geetanjali Misra et al., Poor Reproductive Health and Environmental Degradation: Outcomes of Women's Low
Status in India, 6 COLO. J. INT'L ENVTL. L. & POL'Y 273, 283 (1995).
14
Supra note 11. Successive census returns of 1891, 1901, and 1911 confirmed the low proportion of females in this
community.
15
Jill Radford and Diana Russell, Femicide: The politics of woman 69, TWAYNE PUBLISHERS (1992).
16
Patel, supra note 8.
17
Id.
18
Sabu M. George, Sex Ratio in India, 367 LANCET (2006).
19
Sabu M. George, Hidden Genocide, TIMES OF INDIA, Mar. 8, 2007, at 18 [hereinafter Hidden Genocide]; Sabu
M. George, Millions of Missing Girls: From Fetal Sexing to High Technology Sex Selection in India, 26
PRENATAL DIAGNOSIS 604, 606 (2006) [hereinafter George] (noting that "over one in seven girls is eliminated
before birth because they are female") (emphasis added).
20
Lakshmi Lingman, Sex Detection Tests and Female Foeticide: Discrimination Before Birth, INDIAN J. S.W.
(1991), available at http://www.hsph.harvard.edu/ grhf-asia/forums/foeticide/articles/detection.html (last visited Feb.
2, 2007).
8
 infanticide.21 However, though to some extent it helps in reducing the cruelty projected
on female child and foetus it does not help in achieving the social objective. Though the
PNDT Act has made it illegal to reveal the sex of the foetus, doctors due to its wide
business have developed new techniques to reveal the sex. These include using pink and
blue colour pen, facial expressions, letting the clerk carry the information to the parents
etc22. GE in order to increase its overall sales promotes ultrasound machines as necessary
tools whereas a few obstetricians claim that it is of no use in low-risk groups 23. In 2007,
prosecutors of central Indian city of Hyderabad have charged criminal charges on this
company for selling knowingly ultrasound machines to clinics which were not
registered.24 However, doctors reject to accept the claims that ultrasounds and they are to
be blamed. They believe that other reasons are aiding to this decreased sex ratio including
improper counting of females in the census, decrease in male stillbirths, increased health
conditions of women thus leading to male births.25

1.2: Causes:

Along with doctors and development in technology, family pressures and obligations also
aid this cruelty. Indian traditions and religious practices have played a major role in
gender discrimination. Patriarchal society, age-old belief that a male child will continue
the family tree and be a support system along with the dowry and other expenses which
have to be spent on a girl child has resulted in favouring male child in the society 26. In
India, sons carry their family name whereas daughters after getting married change their
last name to that of their husbands, daughters are considered to be a part of their parents
family only until marriage post which their identity is associated with their in-laws and
husbands’, thus parents believe that sons will take care of themselves in their tough time.
The prevailing joint family practice also supports this theory. This mindset is existent
even among female siblings, who respect their brothers more than their sisters. Religion
21
Vineet Chander, It's (Still) a Boy... ": Making the Pre-Natal Diagnostic Techniques Act an Effective Weapon in
India's Struggle to Stamp Out Female Feticide, 36 GEO. WASH. INT'L L. REV. 453, 469 (2004).
22
Interview with Sanchita Sharma, Health Editor, HINDUSTAN TIMES, in New Delhi, India (Mar. 8, 2007). 57 Peter
Wonacott, Medical
23
Peter Wonacott, Medical Quandry: India's Skewed Sex Ratio Puts GE Sales in Spotlight Are Ultrasounds Used to
Abort Selectively? A Clinic's Violations, WALL ST. J., Apr. 18, 2007, at Al.
24
25
George, supra note 19.
26
See infra Part II.F (discussing the causes of son preference, including Hindu religious beliefs).
9
 also plays a role. In Hinduism, male children are only allowed to light the funeral pyre
thus encouraging the birth of a male child to fulfil the needs of the peaceful afterlife of
parents. Though the Dowry Prohibition Act, 196027 was developed to curb this evil
practice, it is still evidently in practice. Dowry initially was a form of a gift from their
parents as she did not have a stance in inheriting their property which later shifted to an
obligation on part of the parents to get their daughters married. Females who are mothers
of daughters are under the most pressure to deliver a son. Some women in order to save
their child from the atrocities faced by her willingly abort their female fetus. 28 The
misconception that this is widely practised only by illiterates is wrong. The sex ratio is
lower among mothers who have studied till 10th or above29.  Though the PNDT Act has
been in existence since almost a decade, to date only two doctors have been convicted.
Turning a blind eye towards this prevailing mispractice and not enforcing it strictly
projects an image that the enforcers are also giving into this practice.

1.3: The gravity of the Situation:

Though this practice is followed throughout India, it is most evident in the northern
wealthier states. Punjab (82), Haryana (59), Gujarat (50), Maharashtra (29), Delhi (50) 30,
show the most disturbing sex ratios. Other than geographical location, another indicator
can be the development of the place. The decline in sex ratios is double in urban areas as
that in rural areas. This proves the fact that sex determination facilities have increased
this practice as urban and wealthier areas have the most availability of the same and non-
availability and feasibility in rural areas has increased the number of female births.31

Comparing the whole population of India, females are 36 million 32 less in number than
males thus making us a part among the countries with the worst male to female ratio.
27
Dowry Prohibition Act, 1960.
28
Kenan Farrell, Where Have All the Young Girls Gone - Preconception Gender Selection in India and the United
States, 13 Ind. Int'l & Comp. L. Rev. 253 (2002).
29
Prabhat Jha et al., Low Male-to-Female Sex Ratio of Children Born in India: National Survey of 1.1 Million
Households, THE LANCET, Vol. 367, Jan. 21, 2006, at 211. I I The NGOs
30
A.R. Nanda, Not Just a Numbers Game, 511 SEMINAR: BEYOND NUMBERS: A SYMPOSIUM ON
POPULATION PLANNING AND ADVOCACY, 2002, available at
http://www.india-seminar.com/2002/511/511 /20a.r. /20nanda.htm.
31
Supra note, 11.
32
Vir Singh, India's Gender 'Holocaust' Warning, BBC NEWS, Feb. 19, 2002,
http://news.bbc.co.uk/2/hi/south-asia/18929892.stm
10
 Though the exact number cannot be pinpointed, half a million healthy foetus are losing
their lives annually33. Issue of The lancet in 2016 revealed that India was missing half a
million births yearly which if were true for the past two decades must have caused 10
million female foetus abortions34. Critiquing this statement, Mr George35 stated that in the
coming four years India may eliminate four million female foetuses from taking birth.
Irrespective of the number of female foeticides is an existing problem which is evident
through the floating drains, lakes or eaten by dogs as mentioned in the headlines.

33
Supra note, 19.
34
Supra note, 29.
35
Supra note, 18.
11
 CHAPTER 2: ACTS

2.1: PNDT Act:

First national law against sex determination was passed in 199436 by the parliament to
prohibit sex selection prior and post-conception, to prevent misuse of medical facilities
for sex-selective abortion37. PNDT Act has a multi-layer approach to achieve this.
Communication of sex of the fetus is criminalized under this Act thus prohibiting from
disclosing the sex to anyone including their parents.38 Prenatal diagnosis for determining
the sex of the fetus is prohibited 39. This law is enforced by the doctors appointed by the
state and central government.40 Genetic counselling and prenatal testing can be done only
by those clinics which have registered themselves under this law. In order to maintain a
check on these tests conducted, these clinics, laboratories are required to maintain a
proper record of all the essential details41. No forms of advertising in this regard should
be done42. The appropriate authorities appointed by state and central government can
either take a sua sponte action, or upon receiving any allegation complete the
investigation relating to the contravention of this Act 43. They are also held responsible for
granting, suspending and cancelling the registration of such clinics. Contravention of the

36
The Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994.
37
The Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, preamble, No.
9 of 1994, India Cde, available at http://indiacode.nic.in.
38
PNDT Act, § 5(2).
39
Id. § 6.
40
The Act was partly the result of a parliament sub-committee which took recommendations from women's and civil
rights groups. THE LAWYER'S COLLECTIVE: WOMEN'S RIGHTS INITIATIVE, PRE-CONCEPTION & PRE-
NATAL DIAGNOSTIC TECHNIQUES ACT: A USERS GUIDE TO THE LAW 1-2 (Indira Jaisingh, ed., 2004)
[hereinafter Jaisingh].
41
PNDT Act, §§ 3, 18.
42
Id. S. 3(b).
43
Id. § 17(4).
12
 rules of this Act attracts punishment for a max term of three years and a fine of
Rs.1000044. Repeated contravention leads to punishment of 5 yrs. and fine of Rs. 50000 45.
However, this does not apply to any of the women who are compelled to undergo such
tests46. The central government established the Central advisory board is entrusted with
the duty of advising the central government related to policies for better implementation
and keep a check on the proper implementation of the Act. States and Union territories
are also supposed to create a board to spread awareness against sex discrimination and to
check the proper implementation of the Act47. Though this Act was passed in 1994, even
in 1998, clinics which were not registered also continued to give advice in this regard and
proper authorities were not appointed.48 In 2001, SC realized that these state and central
authorities have failed their duties.49  

2.2: MTP Act:

Medical Termination of Pregnancy was amended in the year 2002 50, legalizing abortion
in India under exceptional circumstances. Forms are prescribed for recording opinions of
registered medical officers, reporting to Chief medical officer, maintaining records etc.
are mentioned under the MTP regulations 51. State governments are obliged to make
similar provisions for their respective state and implement the same. To prevent mortality
and morbidity resulting from unsafe abortion, the central government in 2010 released
Comprehensive Abortion Care (CAC).52

Conditions under which abortion is allowed:

·   Continuation of pregnancy might cause the death of the parent or mental/ physical
injury.
44
Id. § 23.
45
Id. § 23(3).
46
Id. § 24.
47
Id. § 16.
48
Supra note, 29.
49
Centre for Enquiry into Health and Allied Themes v. Union of India, 2001 3 I.L.R. (Cal.) 394.
50
The medical termination of pregnancy Act, 1971.
51
NIC, Approval of Private Hospitals for Comprehensive Abortion Care (CAC) services, (September11 2020),
https://cg.nic.in/ekalyani/guidance-maintenance-mtp-records.php, (Accessed October 11, 2020)
52
MOH&FW, Comprehensive Abortion care, (2018),
https://nhm.gov.in/New_Updates_2018/NHM_Components/RMNCHA/MH/Guidelines/
CAC_Training_and_Service_Delivery_Guideline.pdf, (Accessed October 11, 2020)
13
 ·   Child might be born with physical/mental disabilities.

·   Pregnancy caused due to rape

·   Pregnancy as a result of the failure of contraceptive.53

Abortion can be conducted at a government-owned or maintained hospital or a place approved

by Government or the District Level Committee (DLC) headed by the Chief Medical Officer
(CMO) or District Health Officer (DHO). At government facilities, pregnancy can be terminated
up to eight weeks of gestation at primary health Centre, 12 weeks of gestation at community
health Centre, 20 weeks of gestation at district level Centre and higher levels. DLC can approve
termination of pregnancy up to 12 weeks or 20 weeks.

A certificate of approval of DLC chaired by CMO shall be provided for a private place to
conduct termination. Reason for termination, date and signature should be filled in form I within
three hours of pregnancy. In the case of second-trimester abortions, opinion of second RMP shall
also be stated. A monthly statement of all MTPs did shall be sent to CMO in the prescribed
format. Data of all the MTPs conducted at the facility should be registered in the admission
register.54

53
Supra note, 50.
54
MOH&FW, Ensuring access to safe abortion and addressing gender biased sex selection, (2015),
https://www.nhm.gov.in/images/pdf/programmes/maternal-health/guidelines/
Safe_Abortion_and_Gender_Guidance_Handbook.pdf, (Accessed October 28, 2020)
14
 CHAPTER 3: CASE ANALYSIS

3.1: Case Law:

This writ petition55 has been filed by Federation of Obstetrics and Gynecological Societies of
India (FOGSI) highlighting the hardships faced by obstetricians and gynaecologists challenged
the constitutional validity of the PNDT Act in regards to section 23(1) 56 and 23(2) contending
that it is in violation of Article 14, 19(1)g and 2157.

Petitioner contended that this Act was established to curb sex-selective abortion, and treating
clerical errors equivalent to the actual commission of such an illegal activity shows the weakness
and improper drafting of the Act.

They further contended that Authorities conduct raids on district and rural clinics to check the
compliance with the law. However, on the basis of mere paperwork mistakes, they seize the
sonography thus leading to accusing the doctors of indulging in sex determination. They believe
that the Act has not properly differentiated criminal offences from that of abnormalities in
paperwork. These include incomplete F forms, improper mention of address, non-mention of
dates, indication for sonography not mentioned, not legible forms. Additionally, while pointing
out the vagueness and ambiguity of section 23(1), petitioners mentioned the problems and
criminal prosecutions they had to face for an activity which is not in relation to sex determination
and ulterior purpose of the Act. Section 23(2) has also been highlighted and was challenged on
the grounds of our Indian constitution contending it to be ultra vires.

55
Federation of obstetrics and gynecologists’ societies of India V. Union of India, (2019) 6 SCC 282.
56
PNDT Act, Ss. 23(1) and 23(2).
57
IND CONSTI., art. 14, 19(1)g & 21.
15
3.2: Sections mentioned:

Section 23(1) of the PNDT Act58:

This section provides punishment as a whole to any minor or major contravention of the rules
enlisted in the Act which includes imprisonment up to a max term of three years and a fine of
max Rs. 10,000. On subsequent repetition, the max period of punishment is five years with a fine
which may extend to 50,000. There aren’t separate punishments for separate section violation.

Section 23(2) of the PNDT Act59:

When reported by Appropriate authorities, state medical council concerned can suspend the
registration of the medical practitioner until the case has completed the trial and on conviction,
the name shall stay removed for five years from the register of the council and on second-time
conviction, the name shall be removed permanently.

3.3: Analysis:

Arguments by Petitioners:

Article 14(2) of International Covenant on Civil and Political Rights, 1966 60, has been brought
into the picture which states that until proven guilty in the court, everyone is considered to be
innocent. On this basis, petitioners contended that seizing the registration of medical
practitioners prior to the decision passed by the court according to section 23(2) is ultra vires of
our constitution. As stated in  Arun Bhandari v. the State of U.P., (2013) 2 SCC 80161, for
holding someone criminally liable, mens rea should be proved during the commission of the
offence which is not proved in the case of clerical mistakes. Cancellation of registration is not
58
Supra note, 56
59
Id.
60
International Covenant on Civil and Political Rights, 1966, art. 14(2).
61
Arun Bhandari v. the State of U.P., (2013) 2 SCC 801.
16
only ultra vires but also takes a toll on the financial and mental status of that individual and his
family.

Form F does not serve the purpose for which the Act has been made and there is no evidence
showing the correlation between the improper filling of from F and commission of sex
determination and other related offences.

Shri Soli J. Sorabjee and Shri Shyam Divan learned senior counsel observed that awarding same
punishment to all the offences under this Act is similar to treating unequal as equals and it is
violating our constitutional principles. As wrong as it is to treat equals unequally, the same
applies when unequal is treated equally. Uttar Pradesh Power Corporation Ltd. vs. Ayodhya
Prasad Mishra 62case was referred here.

Respondents Arguments:

This Act is created to safeguard the lives of the female foetus and not provide registrations to
medical practitioners. Since there has been no variation in the offences committed, there is no
gradation in punishments allotted. By contending the claims made by the petitioners, respondents
stated that right to practise a medical profession is not an absolute right guaranteed under Article
19 (1) g. The inspections conducted under this Act are in compliance with the provisions for
conducting inspection as mentioned by this court in  Health & Allied Themes (CEHAT) v. Union
of India63.

Rule 9 of this Act specifically talks about proper fillings of the forms and violation of this rule
will be in contravention of sections 5 and 6 64. Form F is used to know the personal and medical
record of the patient visiting the Prenatal Diagnostic Clinic and the consent of the patient in
regards to the prohibition of sex reveal of the foetus. Section 4(3) 65 mandates the proper filling of
form F. This has been made mandatory as it is the only means of keeping a check on who has
used it and for what particular purpose. If these forms weren’t in the question, recognizing and
curbing the exploitation of these machines would become impossible.

62
Uttar Pradesh Power Corporation Ltd. vs. Ayodhya Prasad Mishra, 2008.
63
Health & Allied Themes (CEHAT) v. Union of India, (2003) 8 SCC 398.
64
PNDT Act, Ss. 5&6.
65
Id. 4(3).
17
“Regulation 1.3 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics)
66
Regulations, 2002; Regulation 6.2 of Pharmacy Practice Regulation, 201567; and
Transplantation of Human Organs and Tissues Act, 199468” also specify the importance of
proper maintenance of records.

Further, in the case of  Suo Motu v. State of Gujarat, (2009) 1 Gujarat Law Reporter 64 69,
Gujarat High Court observed the importance of proper maintenance of records.

The gravity of the situation demands such a law. In  S.K. Gupta v. Union of India70 case, court
held that even female infants have a right to life. Further, this isn’t a problem faced only in India.
UN adopted a resolution concerning prenatal sex selection, female infanticide and female genital
mutilation.71 It further urged all the states to individually develop legislations to safeguard the
above-mentioned points. Even the Beijing deceleration adopted in 1995 throws light on this ill
practice and urged governments to make laws to safeguard the rights of females and to stop these
acts.72

This Act has been in existence since the past 24 years and yet there are only 86 convictions of
4202 cases registered which highlights the problems faced by the authorities in this regard.73

Doctors are supposed to keep medical records to maintain accountability not just under this Act
but for other medical interventions as well. Being a socially responsible job, they are bound to
maintain proper records. This is mentioned even in Section 33 of the Indian Medical Council
Act, 1956.74 Non-maintenance of any records in regards to the patient to who medical attention

66
MCI, Regulation 1.3 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics), (2002),
https://www.mciindia.org/documents/rulesAndRegulations/Ethics%20Regulations-2002.pdf, (Accessed October 11,
2020)
67
PCI, Regulation 6.2 of Pharmacy Practice Regulation, (2015), http://www.pci.nic.in/pdf/Pharmacy%20Practice
%20Regulations.pdf, (Accessed October 11, 2020)
68
MOH&FW, Transplantation of Human Organs and Tissues Act, (1994),
https://main.mohfw.gov.in/sites/default/files/Act%201994.pdf, (Accessed October)
69
Suo Motu v. State of Gujarat, (2009) 1 Gujarat Law Reporter 64.
70
S.K. Gupta v. Union of India, AIR 1982 SC 149.
71
UN, The girl Child, (2002), https://www.iom.int/jahia/webdav/shared/shared/mainsite/policy_and_research/un/
56/A_RES_56_139_en.pdf
72
UN, Beijing declaration and platform for Action, (1995),
https://www.un.org/en/events/pastevents/pdfs/Beijing_Declaration_and_Platform_for_Action.pdf, (Accessed
October 11, 2020)
73
Supra note, 55.
74
Indian Medical Council Act, 1956., S.33.
18
has been provided is in violation of the regulations of MCA75. Medical Termination of Pregnancy
Act, 197176 also makes this process mandatory.

Form F consists of the patient’s name and age which are crucial details to identify the individual.
This will help understand if the women undergoing such tests is not above the age of 35 as
prohibited by laws77. Further, address and details of the individual’s parents help in identifying
that person and in contacting her. In absence of these details, it is impossible to detect and curb
the crime. The importance of this form is evident and cannot be concluded as a clerical error.
Any vagueness in the form will lead to violation of section 4 resulting n violation of section 6.
According to section 478, all the prerequisites shall be completed by the doctor before the
commencement of medical attention. Filling of forms being a prerequisite should be informedly
filled by the doctor before starting the medical intervention. In absence of this form, no one will
ever find out the cause for conducting the test which can result in an increase in the crimes.

In the case of  Voluntary Health Association of Punjab v. Union of India, (2013) 4 SCC 179, the
court held that all the clinics conducting such tests are supposed to maintain proper records and
in case such forms are not in compliance with the law, appropriate authorities can take action
against such clinics.

History of the legislation, the purpose thereof, the surrounding circumstances and conditions, the
mischief which is intended to suppress, the remedy for the disease which the legislature resolved
to cure and the true reason for the remedy should be taken into consideration while evaluating
the constitutionality of an act. This was observed in  Hamdard Dawakhana v. The Union of
India, AIR 1960 SC 55480, Namit Sharma V. Union of India, (2013) 1 SCC 745 81, Ram Krishna
Dalmia v. Justice S.R. Tendolkar, AIR 1958 SC 53882 and Budhan Choudhry v. State of Bihar,
AIR 1955 SC 19183. Female feticides being a grave and historical problem, the strictness of these
sections is plausible.
75
76
Supra note, 50.
77
Supra note, 50.
78
PNDT Act, S. 4.
79
Voluntary Health Association of Punjab v. Union of India, (2013) 4 SCC 1.
80
Hamdard Dawakhana v. The Union of India, AIR 1960 SC 554.
81
Namit Sharma V. Union of India, (2013) 1 SCC 745.
82
Ram Krishna Dalmia v. Justice S.R. Tendolkar, AIR 1958 SC 538.
83
Budhan Choudhry v. State of Bihar, AIR 1955 SC 191.
19
Supreme Court considering the arguments from both the sides and assessing the gravity of the
problem, upheld the constitutionality of this Act. Court has mentioned that forms being a pre-
requisite cannot be considered to be a clerical error further section 23(2) falls under a reasonable
restriction of the right to the profession. Keeping in mind the cruelty that is being caused, these
restrictions and punishments are justified and uphold the constitution and fundamental duties.

CHAPTER 4: CONCLUSION AND SUGGETSIONS

Though Female infanticide was for the first time documented by the British in the 1800s this is
an age-old practice that is widely accepted by society. In ancient society, due to the religious and
financial circumstances, they believed that a male child would be beneficial over a female child.

20
They were even sayings stereotyping female birth. They associated female birth with people
lying. After the birth of the female child, parents resorted to various methods to kill the child.
Females had to witness this cruelty. Apart from the cruelty shown towards the child, even the
mother is mentally harassed to give birth to a male child. Development in technology has aided
this practice. Communication of sex before the birth of the baby has led to sex-selective
abortions. The gravity of the situation is mentioned above along with the statistical data. To
provide security and safety and curb this evil practice, parliament has passed the Pre-conception
and Pre Natal diagnosis Techniques Act thus making it illegal to reveal the sex of the foetus
before the birth of the baby and in case of conduction of ultrasound various provisions have been
enlisted which have to be met and the procedure has been established which has to be completed.
Violation of any of the rules mentioned would attract punishment as mentioned in section 23(1).
In the case, the constitutional validity of the Act in regards to section 23(1) and 23(2) was
challenged. After assessing the above arguments and the decree of the court, the author is of the
belief same punishment mentioned as a whole for any contravention of this Act is acceptable
taking into consideration the gravity of the problem. Awareness accompanied by strict laws is
the need of the hour to curb this injustice. This is not against Article 14 as filling of those forms
is a pre-requisite for conducting those tests. It is not the duty of the clerk to fill those forms but
of doctor. Moreover, being a socially responsible profession, it is mandatory on their part to
make sure such records are maintained properly. Improper filling of forms could lead to
exploitation of such machines and can be used as a loophole and enforcement agencies will
never be able to catch the wrongdoers. Since those forms are the only way leading to the
wrongdoers, they cannot be considered to be a clerical mistake. However, though Hon’ble SC
has upheld the constitutionality of section 23(2) 84, the author is of the belief that by seizing the
accused’s registration, they are violating the Human rights of an individual. As mentioned above,
the International Covenant on Civil and Political Rights, 196685 states that no individual is guilty
until proven in the court under Article 14(2). The bitter truth is that Indian cases take years
before the verdict is pronounced and snatching away the livelihood of an individual on who
many lives may be dependent merely on the basis of apprehension is not justified. Further, it
portrays an image that that individual is guilty of the crime. Socially, mentally and economically
it would affect the individual and his family. If the person is proven to be innocent it is unfair on
84
Supra note, 55.
85
Supra note, 60.
21
his/her part and there is no remedy to compensate such loss. The damage done to the individual
is greater than the apprehension of the danger he/she can cause to society. Our constitution
believes that no innocent shall be convicted or resorted to the punishment which is not being
upheld through this section. He/she is being punished even before proving their guilt. Moreover,
as mentioned in Article 2186, the right to life with dignity is a fundamental Right. By seizing the
registration of the individual, the law is portraying a negative societal image thus violating their
right under Article 21. Additionally, the power is solely in the hands of appropriate authorities
and state medical council which might be misused in various ways. Article 14 87 construes against
arbitrariness and by giving such a power to the State Medical Council, it is resulting in
arbitrariness. The author opines that as mentioned by Hon’ble Supreme, section 23(1) does not
violate any Fundamental Rights and is justified for the purpose for which the Act has been
enacted, however, the author does not align with the judgement taken by the court in regards to
section 23(2). It is submitted that seizing the registration of medical practice is in violation of
Fundamental Rights and International Covenant on Civil and Political Rights.

List of Cases:

S.No Case Law Citations

.

86
Maneka Gandhi V. Union of India, 1978 AIR 597.
87
Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722.
22
 1. Health & Allied Themes (CEHAT) v. Health & Allied Themes (CEHAT) v. Union of
India, (2003) 8 SCC 398.
Union of India

Federation of obstetrics and Federation of obstetrics and gynecologists

2. societies of India V. Union of India, (2019) 6
gynecologists’ societies of India V. SCC 282.
Union of India
Arun Bhandari v. the State of U. P. Arun Bhandari v. the State of U.P., (2013) 2 SCC
3. 801.

Uttar Pradesh Power Corporation Ltd. Uttar Pradesh Power Corporation Ltd. vs.
4. Ayodhya Prasad Mishra, 2008.
vs. Ayodhya Prasad Mishra

Voluntary Health Association of Punjab Voluntary Health Association of Punjab v. Union

5. of India, (2013) 4 SCC 1.
v. Union of India

Maneka Gandhi V. Union of India Maneka Gandhi V. Union of India, 1978 AIR
6. 597.

Hamdard Dawakhana v. The Union of Hamdard Dawakhana v. The Union of India, AIR
7. India 1960 SC 554.

Namit Sharma V. Union of India Namit Sharma V. Union of India, (2013) 1 SCC
8. 745.

Ram Krishna Dalmia v. Justice S.R. Ram Krishna Dalmia v. Justice S.R. Tendolkar,
9. Tendolkar AIR 1958 SC 538.

Budhan Choudhry v. State of Bihar Budhan Choudhry v. State of Bihar, AIR 1955 SC
10. 191.

Suo Motu v. State of Gujarat Suo Motu v. State of Gujarat, (2009) 1 Gujarat
11. Law Reporter 64.

S.K. Gupta v. Union of India S.K. Gupta v. Union of India, AIR 1982 SC 149.
12.

23
 Ajay Hasia v. Khalid Mujib Sehravardi  Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1
13. SCC 722.

References:

24
  Odesa Gorman-Stapleton, Prohibiting Amniocentesis in India: A Solution to the Problem
of Female Infanticide or a Problem to the Solution of Prenatal Diagnosis, 14
ILSA J. INT'l L. 23 (1990).
 Termination of Pregnancy, 21 ANN. REV. POPULATION L. 36 (1994-1995).
 Andrea Krugman, Being Female Can Be Fatal: An Examination of India's Ban on Pre-
Natal Gender Testing, 6 CARDOZO J. INT'l & COMP. L. 215 (1998).
 Jyoti Dogra Sood & K.N. Chandrasekharan Pillai, Female Foeticide in India, 2
NUALS L.J. 1 (2008).

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