‘Need For Safe Womb For Female Foetus’: Delhi High Court Issues Directions For Effective Implementation Of PCPNDT Act

The Delhi High Court has passed a slew of directions for effective implementation of the Pre-conception & Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, observing that there is a need for a “safe womb for female foetus.”

Observing that the enactment has to be implemented with greater care and utilised by those who are affected, Justice Swarana Kanta Sharma said:

“Sex-determination based abortion is a powerful method of perpetuating gender inequalities. The restriction of access to foetal sex information is directly related to the problem of misogyny, which affects women of all socioeconomic backgrounds not only in this country but globally as well. The purpose of controlling knowledge of sex or gender is to protect expectant women and their unborn child. Despite the fact that sex-selective abortion may not be immediately apparent in the present act, its primary objective is to address this issue.”

The court observed that although India has made considerable progress towards achieving gender equality, however, the preference for sex determination still exists. It added that it has been challenging to completely eradicate gender bias despite various efforts.

“This statement is being made to emphasise the effectiveness of current legislation and the above observations made by this Court are intended to highlight the impact of existing laws and regulations on society. This Court’s aim is to demonstrate how these laws have influenced people's behaviour in their day-to-day lives,” the court said.

It said that despite the progress, work still needs to be done to ensure that the gender discrimination and sex-determination tests are eradicated completely.

Justice Sharma directed that efforts be undertaken by the Union and Delhi Governments to ensure clarity among Appropriate Authorities about their duties and powers for ensuring effective compliance of the mandate of the Act and better communication between the officials.

Directing further that training and sensitization programmes can be organised for the officials who are concerned with the implementation of the Act, the court ordered:

“At present, the details of the District Appropriate Authorities are not readily available or known to a common layman. It is also not clear as to whether such Appropriate Authorities have an office or a website where a complaint can be lodged or whether a person has to go to their office personally or not. In today’s world of technology, it would be appropriate if online portals and websites are created for this purpose, if not yet done, to notify and inform the general public about the procedure, place and mechanism to lodge such a complaint.”

It said that the constitution of Appropriate Authority, including their contact details and e-mails, be mentioned at specific conspicuous places where a complaint can be made in all the hospitals and clinics providing the facility of ultrasonography or other pre-natal diagnostic techniques.

“The Delhi High Court Legal Service Committee and the law colleges through their legal aid committees may also educate and inform the people about mandatory provision and the fact that in case a person wants to lodge a complaint for commission of offence under this Act, the complaint has to be lodged either with Appropriate Authority or a person authorised on behalf of Central and State Government as per mandate of Section 28 of the Act,” it added.

Furthermore, Justice Sharma directed the concerned Ministries and Departments of the Union and Delhi Governments to ensure that a compliance report of the directions is filed within three months.

“Despite various schemes being implemented by the governments, small families having poor economic status had always desired to have at least one male child. Since, families with poor economic situations have bare minimum resources for their own survival, they cannot afford having two or three children in the family. This became a major criteria for sex determination and in case of a female child, the same led to illicit abortions. The illegal sex- determination tests and thereafter, illegal abortions in itself became a mini industry,” the court said.

It also observed that the dual violence faced by a woman on the basis of her gender is abhorrent and that abortions are being carried out against the law which are based on selective sex determination which the enactment aims to curb.

“Women who choose to have an abortion in such circumstances, or rather are forced to undergo abortion by family pressure, choose to have abortion at private clinics where they use unsafe and unhygienic practices. Poor and rural women lack access to safe and hygienic abortion services and there are instances that since they cannot get these done at government hospitals, either they adopt unsafe means at home or at unsafe private clinics,” court said.

It added: “There are situations where a woman may choose to bear the discomfort of carrying a female foetus for a limited period, rather than subjecting herself and her unborn daughter to a lifetime of distress and anguish. The ethical and personal dilemmas involved for a woman can be intricate, particularly when they clash with societal norms and the collective beliefs of those around her. Consequently, women may find themselves grappling with complex decisions that involve navigating a challenging set of moral and social circumstances.”

The court made the observations while dealing with a plea moved by a man seeking quashing of an FIR registered under sections 3A, 4, 5, 6, 23 and 29 of PCPNDT Act.

It set aside the order of the trial court taking cognizance of the offence in absence of a complaint filed by the Appropriate Authority under section 28 of the Act observing that it was bad in law.

However, it added that no grounds for quashing of FIR were made out since registration of an FIR upon a complaint lodged by the Appropriate Authority or any person authorised on its behalf disclosing cognizable offence, conduct of investigation and filing of chargesheet is not barred under the enactment.

“In case, at the end of the trial, the petitioner is convicted and sentenced for any offence under any provisions of this Act, the period for which the petitioner had remained in judicial custody pursuant to filing of present FIR will stand set off against the period of punishment awarded to him. Accordingly, the present petition, along with pending application, stands disposed of in above terms,” the court said.

Title: MANOJ KRISHAN AHUJA v. STATE OF NCT OF DELHI & ANR.

Citation: 2023 LiveLaw (Del) 341

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