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CASE NO.: 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: J U D G M E N T

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.

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A]      On 4th May 2001, following order was passed:â\200\224         "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

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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]

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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

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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:â\200\224          "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

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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:â\200\224 "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:â\200\224 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;

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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

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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:â\200\224   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.