A Cry Still Unhear1

8/3/2019 A Cry Still Unhear1

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twice or even thrice their age) or worse, slaying her even beforeshe can take one free breath. Of late, technology seems to havefacilitated this diabolical slaughter even before the birth of thechild in the form offemalefoeticide. The termfemalefoeticide means killing the female foetus in the motherswomb.24th September is celebrated as the International GirlChild Day.:KHQZHFHOHEUDWHSURJUHVVZHNQRZWKDWLWKDVEHHQWRRVORZ0RUHWKDQ\UVRILQGHSHQGHQFHLWLVVWLOODZRPHQVIDFHZHVHHZKHQZHVSHDNRISRYHUW\RI+,9$,'6RIYLROHQWFRQIOLFWVDQGVRFLDOXSKHDYDO/HWXVDVVHUWRQFHDJDLQWKDWHDFKZRPHQDQGJLUOLVDXQLTXHDQGDWWKHVDPHWLPHYDOXDEOHKXPDQEHLQJZKRLVHQWLWOHGWRHTXDORSSRUWXQLWLHV


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Amongst the states, the northern state of Punjab tops the list in

number of female foeticide cases reported over the last threeyears with Rajasthan coming next. The country as a wholereported 294 cases during the same period. According to figuresreleased by the National Crime Records Bureau in Punjab, 81cases were registered for female foeticide while for Rajasthan


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the corresponding number was 51. Madhya Pradesh registered21 cases, Haryana 18 and Chattisgarh 24.In Rajasthan, thenumber of cases registered has shown a steady decline since the

last three years with 25, 16 and 10 cases being registered in2006, 2007 and 2008. The National Capital saw seven casesregistered in 2006, four in 2007 and two in 2008. A medicalexpert in India says that an estimated 80,000 women die fromlegal abortions on an annual basis.BACKDROP: STATUS OF WOMENThe adverse sex ratio has been linked with the low status ofwomen in Indian communities, both Hindu and Muslim. The

status of women in a society can be determined by theireducation, health, economic role, presence in the professionsand management, and decision-making power within the family.It is deeply influenced by the beliefs and values of society. Islampermits polygamy and gives women fewer rights than men.Among Hindus, preference for the male child is likewise deeplyenshrined in belief and practice. The Ramayana and the

Manusmriti (the Laws of Manu) represent the ideal woman asobedient and submissive, and always needing the care of a male:first father, then husband, then son.The birth of a son is regarded as essential in Hinduism and manyprayers and lavish offerings are made in temples in the hope ofhaving a male child. Modern medical technology is used in theservice of this religion-driven devaluing of women and girls.Women and Developments in Reproductive TechnologyAbortion was legalized in India in 1971 to strengthenhumanitarian values (pregnancy can be aborted if it is a result ofsexual assault, contraceptive failure, if the baby would beseverely handicapped, or if the mother is incapable of bearing ahealthy child). Amniocentesis was introduced in 1975 to detect


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foetal abnormalities but it soon began to be used for determiningthe sex of the baby. Ultrasound scanning, being a non-invasivetechnique, quickly gained popularity and is now available in

some of the most remote rural areas. Both techniques are nowbeing used for sex determination with the intention of abortion ifthe foetus turns out to be female. These methods do not involvemanipulation of genetic material to select the sex of a baby.THE STATISTICS COUNT: AN EYE-OPENERHowever, there is a dearth of empirical data on this subject butreliance can be placed on the statistics compiled by thegovernment organizations.

Table: Incidence (I) and Percentage Contribution to All India(P) of CrimesCommitted Against Children during 2000 (State and UT-Wise)

SL.NO.

STATES FOET ICIDE INFAN TICIDE

I P I P

1 ANDHRA

PRADESH

8 8.8 7 7.7

2 ASSAM 0 0.0 4 3.8

3 BIHAR 1 1.1 4 3.8

4 GUJARAT 0 0.0 4 3.8

5 HARYANA 13 14.3 1 1.0

6 J&K 0 0.0 1 1.0

7 KARNATAKA 1 1.1 2 1.9

8 KERALA 0 0.0 2 1.99 MADHYA

PRADESH14 15.4 31 29.8

10 MAHARASHTRA41 45.1 20 19.2

11 ORRISA 1 1.1 0 0.0


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12 PUNJAB 0 0.0 6 5.8

13 RAJASTHA N 9 9.9 5 4.8

14 SIKKIM 0 0.0 3 2.9

15 TAMIL NADU 0 0.0 8 7.716 WEST BENGAL 0 0.0 2 1.9

17 CHANDIGARH 1 1.1 0 0.0

18 DELHI 2 2.2 2 1.9

THE DEPLETING SEX RATIO INDEX OVER THE LAST

CENTURYThe following is the sex ratio chart from 1901 to 2001.

YEAR-SEX RATIO

Females per 1,000 males1901 - 9721911 - 9641921 - 9551931 - 950

1941 - 9451951 - 9461961 - 9411971 - 9301981 - 9271991 - 933The Census 2001 figures reveal that the child sex ration for the

age group of 0-6 years is comparatively lower in:-a) Punjab (798),b) Haryana (819),c) Chandigarh (845),d) Delhi (868),


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e) Gujarat (883),f) Himachal Pradesh (896)g) Rajasthan (909)

as compared to the national average pf 927 girls per thousandboys. Though there is no established causal relationship betweenadverse sex ratio and spurt in cases of sex related crimes, thiscould be one of the factors resulting in some forms of violenceagainst women.TECHNOLOGICAL ADVANCEMENTS ENHANCING

THE MENACESome of the worst gender ratios, indicating gross violation of

womens rights, are found in South and East Asian countriessuch as India and China. The determination of the sex of thefoetus by ultrasound scanning, amniocentesis, and in vitrofertilization has aggravated this situation. No moral or ethicalprinciple supports such a procedure for gender identification.The situation is further worsened by a lack of awareness ofwomens rights and by the indifferent attitude of governments

and medical professionals. Recent preconception genderselection (PGS), however, includes flow cytometry,preimplantation gender determination of the embryo, and invitro fertilization to ensure the birth of a baby of the desired sexwithout undergoing abortion.Also, the introduction of a United States patented sexdetermination kit called Baby Gender Mentor Home DNAGender Testing Kit have raised fears about back-door foetusdetermination tests. The kit, priced at $275 was popularlyknown as Jantar Mantar in rural Punjab. It had a built-in-equipment for collecting and sending a finger-prick bloodsample to a Massachusetts laboratory from where confidential


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results were sent via e-mail within 48 hours. Technology isadvancing but, alas, the thinking is still barbaric.

LEGAL PROVISIONS COMBATING IT

1) INDIAN PENAL CODESections 312-316 of the Indian Penal Code (IPC) deals withmiscarriage and death of an unborn child and depending on theseverity and intention with which the crime is committed, thepenalties range from seven years to life imprisonment forfourteen years and fine.6HFWLRQ&DXVLQJPLVFDUULDJH

Whoever voluntarily causes a woman with child to miscarry,shall, if such miscarriage be not caused in good faith for thepurpose of saving the life of the woman, be punished withimprisonment of either description for a term which may extendto three years, or with fine, or with both, and, if the woman bequick with child, shall be punished with imprisonment of eitherdescription for a term which may extend to seven years, andshall also be liable to fine.Explanation:- A woman who causes herself to miscarry, iswithin the meaning of this section.6HFWLRQ&DXVLQJPLVFDUULDJHZLWKRXWZRPDQVFRQVHQWWhoever commits the offence defined in the last precedingsection without the consent of the woman, whether the woman isquick with child or not, shall be punished with [imprisonmentfor life] or with imprisonment of either description for a term

which may extend to ten years, and shall also be liable to fine.6HFWLRQ'HDWKFDXVHGE\DFWGRQHZLWKLQWHQWWRFDXVHPLVFDUULDJHWhoever, with intent to cause the miscarriage of woman withchild, does any act which causes the death of such woman, shall


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be punished with imprisonment of either description for a termmay extend to ten years, and shall also be liable to fine.

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Whoever before the birth of any child does any act with theintention of thereby preventing that child from being born aliveor causing it to die after its birth, and does by such prevent thatchild from being born alive, or causes it to die after its birth,shall, if such act be not caused in good faith for the purpose ofsaving the life of the mother, be punished with imprisonment ofeither description for a term which may extend to ten years, orwith fine, or with both.6HFWLRQ&DXVLQJGHDWKRITXLFNXQERUQFKLOGE\DFWDPRXQWLQJWRFXOSDEOHKRPLFLGHWhoever does any act under such circumstances, that if hethereby caused death he would be guilty of culpable homicide,and does by such act cause the death of a quick unborn child,shall be punished with imprisonment of either description for aterm which may extend to ten years, and shall also be liable to

fine.

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would amount to culpable homicide. The woman is injured, butdoes not die, but the death of an unborn quick child with whichshe is pregnant is thereby caused. A is guilty of the offence

defined in this section.Until 1970 the provisions contained in the Indian Penal Code(IPC) governed the law on abortion. The Indian Penal Code1860 permitted legal abortions did without criminal intent andin good faith for the express purpose of saving the life of themother. Liberalisation of abortion laws was also advocated asone of the measures of population control.

2) THE MEDICAL TERMINATION OF PREGNANCYACT, 1971The Medical Termination of Pregnancy Act was passed in July1971, which came into force in April 1972. This law wasconceived as a tool to let the pregnant women decide on thenumber and frequency of children. It further gave them the rightto decide on having or not having the child. However, this good

intentioned step was being used to force women to abort thefemale child. In order to do away with lacunae inherent inprevious legislation, the Pre-natal Diagnostic Techniques(Regulation and Prevention of Misuse) Act had to be passed in1994, which came into force in January 1996. The Actprohibited determination of sex of the foetus and statedpunishment for the violation of the provisions. It also providedfor mandatory registration of genetic counselling centres,clinics, hospitals, nursing homes, etc.

Thus both these laws were meant to protect the childbearingfunction of the woman and legitimise the purpose for which pre-natal tests and abortions could be carried out. However, in


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practice we find that these provisions have been misused and areproving against the interest of the females.

3

) THE PRE-CONCEPTION AND PRE-NATALDIAGNOSTIC TECHNIQUES (REGULATION AND

PREVENTION OF MISUSE) ACT, 1994To combat the practice of female foeticide in the countrythrough misuse of technology, done surreptitiously with theactive connivance of the service providers and the personsseeking such service, the Pre-natal Diagnostic Techniques(Regulation and Prevention of Misuse) Act was enacted on

September 20, 1994 by the Government of India. The Act wasamended in 2003 to improve regulation of technology capable ofsex selection and to arrest the decline in the child sex ratio asrevealed by the Census 2001 and with effect from 14.02.2003,due to the amendments, the Act is known as the Pre-conceptionand Pre-natal Diagnostic Techniques (Prohibition of SexSelection) Act, 1994.

Its PurposeThe main purpose of enacting the PC&PNDT (prohibition ofSex Selection) Act, 1994 has been to:i) Ban the use of sex selection techniques before or afterconceptionii) Prevent the misuse of pre-natal diagnostic techniques for sexselective abortionsiii) Regulate such techniques Stringent punishments have beenprescribed under the Act for using pre-conception and pre-nataldiagnostic techniques to illegally determine the sex of the foetus.Authorities Empoweredand pertinentaswellasimportant

provisions


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4) THE CONSTITUTION OF INDIASection 312 of the Indian Penal Code read with the Medicaltermination of Pregnancy act, 1971 where all the restrictionsimposed therein, including the time limit of 20 weeks, other thanthe ones to ensure good medical conditions, infringe the right to

abortion and the right to health, which emanate from right to lifeas guaranteed by Article 21 of the Constitution. Freedom frominterference in ones privacy and family life is protected byArticle 12 of the Universal Declaration of Human Rights,Article 17 of the Civil and Political Rights Covenant, Article 11of the American Convention, and Article 8(1) of the EuropeanConvention. Right to abortion is a species of right to privacy,

which is again proclaimed a continuance of the right to lifeunderArticle 21.A SURVEY OF THE IMPLEMENTATION OF THE ACTA survey was conducted to assess the implementation of the1994 Act in South Delhi and to make recommendations for its


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improvement. This involved examining the organizationalstructure, observing 26 clinics, and distributing a questionnaireto patients. The results showed up serious failures in

management and implementation, lack of commitment andmotivation, widespread corruption, and little knowledge inclinics of the provisions of the Act. The presence of individualsoutside the medical profession, in particular those involved withhuman rights, would have helped to prevent fraternity bias anunwillingness to bring medical colleagues to account.The survey of patient attitudes showed that only 40% of malepatients and 30% of female patients were aware of the

prohibition of sex determination. While 90% purported to agreewith the principle of the Act, they nevertheless maintained that amale child was important for the strengthening of the family.GOVERNMENT ACTION-PLAN AND POLICY

FRAMEWORKNational Plan ofAction exclusively for the girl child (1991-2000) was formulated in 1992 for the Survival, Protection

and Developmentofthe Girl Children. The Plan recognizedthe rights of the girl child to equal opportunity, to be free fromhunger, illiteracy, ignorance and exploitation. Towards ensuringsurvival of the girl child, the objectives are to:v Prevent cases of female foeticide and infanticide and ban thepractice of amniocentesis for sex determination;v End gender disparity in infant mortality rate; eliminate genderdisparities in feeding practices, expand nutritional interventionsto reduce severe malnourishment by half and providesupplementary nutrition to adolescent girls in need;v Reduce deaths due to diarrhoea by 50% among girl childrenunder 5 years and ensure immunization against all forms ofserious illnesses; and


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v Provide safe drinking water and ensure access to fodder anddrinking water nearer home.Balika Samriddhi Yojana

The launching of the Balika Samriddhi Yojana in 1997 is amajor initiative of Government to raise the overall status of thegirl child. It intends to change family and community attitudestowards her and her mother. Under this scheme about 25 lakhgirl children born every year in families below the poverty lineare to be benefited. The first component of the scheme, whichhas already been launched, is to provide Rs.500/ - as a post-delivery grant to the mother of the girl child as a symbolic gift

from Government. The other components proposed under thescheme are provision of annual scholarships to the beneficiarieswhen they go to school and assistance for taking upon incomegenerating activity when they attain the age of maturity.Besides having specific legislation and policy proclamations todeal with this menace, the precipitating factors such as dowry,poverty, and womans economic dependence etc., leading to the

problem of foeticide and infanticide have been addressed byenacting various legislations as: Dowry Prohibition Act, 1961(Amendedin 1986); Hindu Marriage Act, 1955; Hindu Adoptionand Maintenance Act, 1956; Immoral Traffic Prevention Act, 1986 Equal Remuneration Act, 1976.It is sincerely HOPED that such measures would equip womento exercise their rights.The Ministry of State for Health andFamily Welfare is also embarking on a massive national levelawareness and sensitisation programme on a sustained basis tocheck female foeticide. Non-government organisations, media,entertainment industry, spiritual leaders, medical fraternity and


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youth will be involved in a big way as agents of social change inthe campaign.Deterrence (enforcing the law), counselling (community

education) peer pressure (holding last rites after abortions tounnerve the family and doctors) and incentives for informers canbe used as effective tools to bring about an appreciable changein attitude.The number of female children is coming down alarmingly andthe present male-female ratio stands at 1000:800 in somenorthern states including Haryana, Punjab and South Delhi.JUDICIAL ACTIVISM AND RESPONSE

Our honourable judiciary in India had observed 2007 as theAwareness Year of Female Foeticide and dealt in a strict mannerwith those responsible for this crime. The former Chief JusticeY.K. Sabharwal had declared while delivering his presidentialaddress at a state-level seminar on Eradication of FemaleFoeticide, jointly organised by the Punjab Department ofHealth and Family Welfare and Punjab Legal Services Authority

that law can play an important role in checking this menace offemale foeticide.CEHAT v UnionofIndiaIn the landmark case of CEHAT, MASUM and Dr Sabu Georgev Union of India and others - in light of the alarming decline insex ratios in the country to the disadvantage of women, thispetition was filed seeking directions from the Supreme Court forthe implementation of the Pre-Natal Diagnostic Techniques Actwhich regulates the provision of pre-natal diagnostic technology.In this case the Court took on the unique role of actuallymonitoring the implementation of the law and issuing severalbeneficial directives over the course of 3 years during which thecase was proceeding in court. This petition put the issue of sex


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selection and sex selective abortion on the national agenda andas a consequence there have been heightened activities on thisissue by government and non-governmental agencies alike.

In the words of Supreme Court of India, It is unfortunate that forone reason or the other, the practice of female infanticide stillprevails despite the fact that gentle touch of a daughter and hervoice has soothing effect on the parents. One of the reasons maybe the marriage problems faced by the parents compelled withthe dowry demand by the so-called educated and/or rich personswho are well placed in the society. The traditional system offemale infanticide where by female baby was done away with

after birth by poisoning or letting her choke on husk continues ina different form by taking advantage of advance medicaltechniques.Unfortunately, developed medical science is misused to get ridof a girl child before birth. Knowing fully well that it is immoraland unethical as well as it may amount to an offence, foetus of agirl child is aborted by qualified and unqualified doctors or

compounders. This has affected overall sex ratio in variousThe Supreme Court of India also directed all the StateGovernments/Union Territory administrations to create publicawareness against the practice of pre-natal determination of sexand female foeticide through advertisements in the print andelectronic media by hoardings and other appropriate means. TheGovernments to furnish quarterly returns to the centralsupervisory board giving a report on the implementation ofPNDT Act, 1994.In the case ofKharakSingh Vs. StateofU.P. and others , theSupreme Court has certainly recognized that a person hascomplete rights of control over his body organs and his personunderArticle 21. It can also said to be including the complete


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right of a woman over her reproductive organs. In the UnitedStates ofAmerica, the Supreme Court upheld the right toprivacy and ended the ban on birth control back in 1965, in the

case ofGriswold v. Connecticut . Eight years later, the SupremeCourt ruled the right to privacy included abortions in thelandmark case of Roe v. Wade . In 1976, Planned Parenthood ofCentral Missouri v. Danforth, ruled that requiring consent by thehusband and the consent from a parent if a person was under 18was unconstitutional. This case supported a womans controlover her own body and reproductive system. William Brennan,J. stated:

If the right to privacy means anything, it is the right of theindividual, married or single, to be free from unwantedgovernmental intrusion into matters so fundamentally affecting aperson as the decision to bear or beget a child.

Vijay Sharmaand Another Vs UnionofIndiaThe couple, Vijay and Kirti Sharma, based in the commercialmetropolis Mumbai, challenged the validity of the Pre

Conception and Pre Natal Diagnostic Tests Act (PCPNDT) Act,a 2001 Indian legislation which bans sex determination. But thejudges said in a verdict pronounced on Friday that sex selectionwould be as good as female foeticide.Qualified Private Medical Practitionersand Hospitals

Association Vs StateofKeralaIt was declared that laboratories and clinics which do notconduct pre-natal diagnostic, test using ultrasonography will notcome within the purview of the Pre-Natal DiagnosticTechniques (Regulation and Prevention of Misuse) Act, 1994and a direction to the respondents not to insist for registration ofall ultrasound scanning centres irrespective of the fact as towhether they are conducting ultrasonography, under the Act,


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1994. a similar view was taken in the case ofMalpaniInfertility Clinic Pvt. Ltd.and Others Vs Appropriate

Authority, PNDT Actand Others.

Dr. Varsha Gautam W/O Dr. Rajesh Gautamvs State Of

U.PA pregnant woman wanted to get her abortion done becausethere was a girl child in her womb. She approached thepetitioner Dr. Varsha Gautam at her hospital, who agreed toperform the abortion although it was an offence to perform suchan operation and even determination of the sex by doctors using

ultrasound technique was illegal. The petitioner is said to haveengaged in getting abortions done in her hospital in collusionwith doctors, who determined the sex of the foetus byconducting ultrasound tests. Her clinic was not even registeredunder the Act and she was not entitled to conduct pre-nataldiagnostic procedures therein.

Vinod Soniand Another Vs UnionofIndiaBy this petition, the petitioners who are married couple seek tochallenge the constitutional validity of Preconception andPrenatal Diagnostic Techniques (Prohibition of Sex Selection)Act of 1994 (hereinafter referred to Sex Selection Act of 1994).The petition contains basically two challenges to the enactment.First, it violates Article 14 of the Constitution and second, that itviolates Article 21 of the Constitution of India. It was heldthat Right to bring into existence a life in future with a choice todetermine the sex of that life cannot in itself to be a right.Reliance is placed on a Supreme Court Judgment and two earlierdecisions whereby the Supreme Court has explained Article 21and the rights bestowed thereby include right to Food, clothing,


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decent environment, and even protection of cultural heritage.These rights even if further expanded to the extremes of thepossible elasticity of the provisions ofArticle 21 cannot include

right to selection of sex whether preconception or postconception thus, not unconstitutional.

In order to strengthen the monitoring of female foeticide and girlchild survival, the Registrar General of India, has made itmandatory for all the Chief Registrars of Births and Deaths toclosely monitor the sex ratio at birth every month.CONCLUSION

In India, the available legislation for prevention of sexdetermination needs strict implementation, alongside thelaunching of programmes aimed at altering attitudes, includingthose prevalent in the medical profession. More generally,demographers warn that in the next twenty years there will be ashortage of brides in the marriage market mainly because of theadverse juvenile sex ratio, combined with an overall decline infertility. While fertility is declining more rapidly in urban andeducated families, nevertheless the preference for male childrenremains strong. For these families, modern medical technologiesare within easy reach. Thus selective abortion and sex selectionare becoming more common.The National Plan ofAction for the South Asian Association forRegional Cooperation (SAARC) Decade of the Girl Child(1991-2000) seeks to ensure the equality of status for the girl

child by laying down specific goals for her dignified survivaland development without discrimination. The codified lawworld over considers human life as sacred and specific legalprovisions have been devised to protect the life of the born andthe un-born.


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However, the objective of the law gets defeated due to lacunaein the law and lack of proper implementation. Even though thelaw is a powerful instrument of change yet law alone cannot root

out this social problem. The girls are devalued not only becauseof theeconomic considerations but also because of socio-culturalfactors, such as, the belief that son extends the lineage, enlargesthe family tree, provides protection safety and security to thefamily and is necessary for salvation as he alone can light thefuneral pyre and perform other death related rites and rituals.Evidence indicates that the problem of female foeticide is more

prevalent in orthodox families. It is, therefore, essential thatthese sociocultural factors be tackled by changing the thoughtprocess through awareness generation, mass appeal and socialaction. In addition to this all concerned i.e. the religious andsocial leaders, voluntary organisations, womens groups,socially responsible media, the doctors; the MedicalCouncil/Association (by enforcing medical ethics and penalties

on deviant doctors) and the law enforcement personnel shouldwork in a coordinated way.To conclude I would like to say that awareness amongst peoplefrom all walks of life and enlightening them with education aretwo foolproof tools of combating this ever pervading menacewhich has plagued our country and rendered the sex ratio to falldrastically. Female foeticide is also depicted in a serial namedNa Aana Is Desh Meri Lado aired on Colors channel over theweek days to which a notice has been issued by the NationalCommission of Women of being violative of the IndecentRepresentation of Women (Prohibition) Act, 1986 as well asCable T.V. Networks (Regulation) Act, 1995.


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A Cry Still Unhear1

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