By Manohar Agnani
The judiciary in India will observe 2007 as the Awareness Year of Female Foeticide and will deal in a strict manner with those responsible for this crime, former Chief Justice Y.K. Sabharwal had declared while delivering his presidential address at a state-level seminar on "Eradication of Female Foeticide", jointly organised by the Punjab Department of Health and Family Welfare and Punjab Legal Services Authority.
The law can play an important role in checking this menace of female feticide, he added. Warning the medical fraternity, he said there ought to be stricter control over clinics that offer to identify the sex of a foetus and a stronger check on abortions to ensure that these are not performed for the wrong reasons. Doctors must also be sensitised and strong punitive measures must be taken against those who violate the law, he asserted.
It will be interesting to investigate how the judiciary at different levels heeds the exhortations of the highest in the judiciary. The case in this instance cited below refers to Morena in Madhya Pradesh, one of the very few districts in the country where this issue has been vigorously perused and a game of snakes and ladder is being played out.
A team of district officials did a door-to-door survey in a village and came up with an alarmingly adverse child sex ratio. When this was discussed with the villagers in the evening, they not only accepted the figures but also openly disclosed the fact of sex determination through sonography and termination thereafter in case of a female child and also the names of the nursing homes they visited for sex determination.
Discussions were undertaken with the medical fraternity in the district with a view to discouraging sex determination and so that the district authorities would not permit this heinous practice. However, there was no visible change in the attitude of doctors, therefore the records of nine centres registered under the Act were seized.
These records were scrutinised and it was observed that non-compliance with the maintenance of mandated records was very common at the registered centres.
The laxity was more prominent with the Form F requirement. Through this form only the following vital information can be obtained:
(1) Number of children with sex of each child.
(2) Purpose for which ultrasound was done during pregnancy.
(3) Result of ultrasonography - if any abnormality detected.
(4) Was MTP advised/conducted? - Date on which MTP carried out.
(5) Declaration of doctor that while conducting ultrasonography, he has neither detected nor disclosed the sex of her foetus to anybody in any manner.
(6) Declaration of the pregnant woman that by undergoing ultrasonography, she does not want to know the sex of the foetus.
After a scrutiny of the records, the appropriate authority, the chief medical and health officer, issued show cause notices and finally cancelled seven registrations.
In the instance of one centre, which was operating two machines in two different locations with one registration, a case was submitted before the chief judicial magistrate. No discernible result in this case could be seen till date.
All the seven nursing homes/ultrasound centres appealed against the cancellation in the month of June 2005, much after the prescribed duration. The State Appellant Authority condoned the delay in all the cases, and decided all the seven cases on the same date of June 10, 2005 giving almost identical reasons for accepting the appeal and quashing the order of the appropriate authority even though the merits and grounds were different in all the cases.
The Appellate Authority, while admitting that Form "F" was not maintained by these centres and also that records for the last two years were not maintained, observed that "although there is no clear evidence of maintaining all the prescribed records as envisaged under section 4(3) and rule 9 of the Act, but looking to the records made available, it does not amount to a gross irregularity to cancel the registration of the appellant".
This order of the state Appellate Authority was challenged by two NGOs namely "Prayatn" and "Dharti Gram Utthan", which work in Morena on this issue, by filing a public interest litigation (PIL) in the high court of Madhya Pradesh's Gwalior bench.
The petitioners argued that the erroneously called such violation a "mere irregularity" and felt that if the reasoning given by the state Appellate Authority were accepted, it would result in total non-implementation of the Act and rules against female foeticide resulting in a further decline of the sex ratio in Morena district.
This petition was admitted for final hearing and the operation of the impugned order of the state Appellate Authority was stayed.
In the meantime, the court directed that all the chief medical and health officers (CMHOs) and district collectors of Morena, Guna, Shivpuri, Ashok Nagar, Vidisha, Datia, Sheopur, Bhind and Gwalior make a survey and inspect all the nursing homes as well as the laboratories and centres where the ultrasound machines were being used.
They would have to verify that in such nursing homes and the laboratories/centres appropriate measures were being adopted to restrain, avoid and prohibit the sex determination and sex selection process. They would have to survey all the towns of the district where these machines were being used and submit the report before the court. They would also have to suggest the effective measures to prohibit and prevent such kind of determination.
The state was also directed to seek a report from the Morena collector about the status of involvement of respondents whose licenses were cancelled, whether they were involved in the cases of sex selection and sex determination at the pre- conception and pre-natal stage.
On Dec 13, 2006, five respondents filed applications and contended that they had applied for permission to run the ultrasound machines, as they were not involved in pre-natal sex determination, although the CMHO of Morena submitted that the owners of these machines were not furnishing proper information in proper format.
The court directed that in view of this fact, the respondents would be permitted to run their ultrasound machines but made it clear that they would have to furnish regular information as required under PNDT Act of 1994 and the rules framed there under. It said the competent authority would also have the liberty to supervise and make proper checks of the machines and take action in case any breach was found against them as per the Act and the Rules.
A very obvious question stares in our face on these two different approaches to the ultrasound centres, particularly in view of the chief justice's statement. Is the judiciary really very serious about the problem of abuse of sonography and the resultant grave gender imbalance? Certainly, a doubt lurks in the mind that the judiciary may take this as a routine social legislation and leave it to time to get sorted out.
(Dr Manohar Agnani is an IAS officer of MP cadre. He can be reached at firstname.lastname@example.org)