Pre-natal sex determination is the practice of determining the sex of the foetus before birth through ultrasonography. Various countries have adopted this practice, but in a few countries such as India, this practice has led to female foeticide, i.e., determining the sex of the foetus and undergoing an abortion in case the sex of the foetus turns out to be female. Now there are various stereotypical reasons which pave the ways for female foeticide, some of the reasons that are unfortunately believed and accepted by some Indians are: having a girl child is a burden as they have to pay dowry while getting her married, girl child won’t carry the family name, a girl child may bring shame to the family by eloping, etc. These beliefs and mentality of the people is the prime reason for an alarming increase of female foeticide in India.
The Government of India, to address this issue has enacted the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 (PNDT Act). According to section 5(1) of this Act, no person can conduct a pre-natal diagnosis without the concerned pregnant woman’s consent, and even if the diagnosis has been conducted according to section 5(2), “No person including the person conducting pre-natal diagnostic procedures shall communicate to the pregnant woman concerned or her relatives or any other person the sex of the foetus by words, signs or in any other manner“. Most importantly section 6 of the PNDT Act prohibits conducting pre-natal diagnostic techniques to determine the sex of a foetus. Further section 23 of this Act provides for imprisonment for a term which may extend to three years and with fine which may extend to ten thousand rupees and on any subsequent conviction, with imprisonment which may extend to five years and with fine which may extend to fifty thousand rupees in case of violation of the provisions of the PNDT Act.
Even after all the enactments, guidelines, punishments, etc. given for determining the sex of the foetus, surveys show that female foeticide is still on the rise. In the year 2016, a global study on female infanticide by Asian Centre for Human Rights gave a report titled “Female Infanticide Worldwide: The case for action by the UN Human Rights Council”, which places India in the 4th place in having the highest female foeticide with a sex ratio of 112 males/100 females. Apart from this in the year 2020, a United Nations report stated that 4.6 lakh females were missing at birth in India each year from 2013 to 2017.
Bringing the ban of pre-natal sex determination to light, in the recent judgment of Rekha Sengar v. State of Madhya Pradesh, Justice Mohan M. Shantanagoudar, Vineet Saran and Ajay Rastogi dismissed the Special Leave Petition stating the prenatal sex determination to be a grave offence and having a serious effect on the society at large. In the present case, the accused approached the Apex Court for the grant of Bail. The petitioner was charged under certain relevant provisions of the Indian Penal Code, Medical Termination of Pregnancy Act, 1971, and under the provisions of the Pre-Conception and Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 (PC&PNDT Act). The bail was rejected by the Sessions Court as well as the High Court of Madhya Pradesh. There was the existence of a prima facie case which was the major reason for turning down the bail petition. The investigation team has seized the ultrasound machine with no registration or license, adopter and gel used in sex determination, and other medical instruments used during an abortion and sex determination from the residence of the accused, which forms the evidence for prima facie case. In the said judgment, the Coram referred to the legislative history of the PC & PNDT Act.
The bench also mentioned it in the case of Voluntary Health Association of India v. the State of Punjab, (2013) while pronouncing the judgment. It observed, “The unrelenting continuation of this immoral practice, the globally shared understanding that it constitutes a form of violence against women, and its potential to damage the very fabric of gender equality and dignity that forms the bedrock of our Constitution are all factors that categorically establish prenatal sex determination as a grave offence with serious consequences for the society as a whole.” The court while dismissing the petition stated that no leniency should be given at all in these issues and to eradicate gender discrimination and sex determination, such strict measures are very important. The bench by this judgment has put forward a step to dismiss gender inequality.
Jurisdictio Omnis 