Tracker controversy

AT A CAMPAIGN against sex determination tests and female foeticide, in New Delhi. A file picture.-V. SUDERSHAN

The use of tracker technology to zero in on the misuse of diagnostic techniques for sex determination has evoked mixed reactions.

ONE of the least discussed issues in the context of the data thrown up by Census 2011 is the worrisome decline in the child sex ratio (CSR) and the not-too-perfect implementation of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, or PCPNDT Act. There is reason to believe that the implementation of the Act a good piece of legislation has not been up to the mark and that the efforts to prevent sex determination tests have not been effective. The interest of the Union Ministry concerned is perceived at best as pedantic. There is also the concern that some people involved in the implementation of the Act continue to carry the baggage of ideas that run contrary to the spirit of the Act. The resistance from vested interests and from well-meaning sections to certain measures introduced by the government has rendered the basic provisions of the Act ineffective and deflected attention from the problem at hand.

Consider this. On December 2, in response to a question in the Lok Sabha on the implementation of the Act, the replies of the Minister of State for Health and Family Welfare were at best evasive. To a question on the number of meetings held by advisory committees set up in the States, the reply was that such meetings were continuous processes and that information was not maintained centrally. The last annual report prepared on the implementation of the Act was in 2006. Since then, barring the occasional question on the subject in Parliament, there is little happening in terms of seriously taking stock of the situation. New technological interventions introduced by governments, both at the Centre and in the States, have not inspired confidence among those concerned about the sharp decline in the CSR.

The number of convictions under the almost 16-year-old law has been negligible. Sting operations, too, have had negligible impact, says Varsha Deshpande, a lawyer in Maharashtra. She cited the example of Kolhapur, a district with one of the lowest CSRs in the State, and said the sex of the foetus was communicated in various novel ways, including cryptic phrases and the widely accepted greeting Jai Mata Di. For this reason, there is enough scepticism over the tracker, the latest technological fix being promoted by the Ministry, which has been introduced in some States. The tracker, or silent observer (SIOB), is a device attached to ultrasound machines through cables in order to capture video images of each sonography and store them in its hard disk. The idea behind the tracker, which is a product of a company that claims to be one of the leaders in mobile and e-governance, is that the images stored in a centralised server can be reviewed to track instances of foeticide.

While sections within the government are convinced about the efficacy of the tracker, Dr Sabu George, who has been pushing relentlessly for the effective implementation of the Act, and Varsha Deshpande are sceptical of such efforts. There are limitations to using technology to fight technology, argues Sabu George, who fought hard to insert amendments to the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act to include pre-conception tests too. He says what is required is more reporting of Form F, the mandatory requirement under the PCPNDT Act. (It is a form for the maintenance of records in respect of pregnant women by genetic clinic/ultrasound clinic/imaging centres.) It is not a crime to show the image but to communicate it is and that is still rampant. Trackers do not prevent the ultrasonologist or doctor from communicating the sex of the foetus, said Sabu George.

In the 36 sting operations conducted in Maharashtra, he said, one revealing fact was that Form F had not been filled out by any of the institutions. Varsha Deshpande said doctors were happy with the trackers as no inspections were being conducted. She said there were more than 260 cases pending in courts and only four convictions so far. Of the 270 centres in Kohlapur, 230 had installed the device, she said. Twenty centres had refused to install it, but no action was taken against them, she added.

The image tracked is not enough evidence to tell the court that sex determination has been done. The law is wider and comprehensive; it should be implemented. For non-maintenance of records, the courts are known to impose only minor fines, said Varsha Deshpande. The Kolhapur district administration made it mandatory for all pathologists using ultrasound machines to install the SIOB. The Maharashtra chapter of the Indian Radiological and Imaging Association (IRIA) went to court against this and argued that the device was useless and that it violated the privacy of the individual as third parties could view the images. The government argued that ever since the installation of the device was made mandatory the filling up of Form F had gone up. Two separate judgments, on the use of mobile ultrasound clinics and on the installation of the SIOB, have gone in favour of the government's position.

The IRIA's petition in the Bombay High Court challenged a July 28, 2011, decision of the Medical Health Officer (the designated Appropriate Authority) restraining a genetic clinic from using a portable sonography machine. A Division Bench of Justices P.B. Majmudar and Mridula Bhatkar upheld on November 17 the decision of the Appropriate Authority. It ruled:

In our view the direction issued by the Authority is in consonance with the provisions of the Act and only with a view to prevent possible misuse of such machine. It cannot be disputed that such a machine can be utilised for prenatal diagnosis even at the place where the machine is taken outside the clinic. It is required to be noted that ultrasonography is one of the prenatal diagnosis techniques as prescribed under the Act. As pointed out earlier, unfortunately there are cases where such techniques are being misused to detect sex of the foetus and termination of pregnancy of unwanted female child. In our view, even if there is only one case out of millions this court may not interfere with such a policy decision which in our view is the most scientific and in the interest of society. Considering the said aspect, it cannot be said that any fundamental right either under Article 14 or 19 is violated as the Petitioner-Association can carry out its activity within the Institute itself and at the recognised place. The restriction imposed by the concerned officer is the most reasonable and in public interest and does not violate the fundamental right of the petitioner in any manner. Ultimately the public interest at large is required to be taken into account and the decision taken by the concerned officer is in consonance with the provisions of the Act.

The order also referred to the Division Bench's judgment on August 28, 2011, on a petition filed by the State chapter of the IRIA ( State chapter, Jalna vs Union of India and Ors) challenging a circular issued by the Collector and District Magistrate of Kolhapur on March 3, 2010, asking all radiologists and sonologists to install the SIOB in their ultrasound sonography machines. The Division Bench had upheld the circular and dismissed the petition. In the latest order, too, the court observed that the notice under challenge was consistent with the provisions and object of the Act and that the direction given by the officer concerned was in consonance with the provisions of the Act.

But radiologists believe that the measures are defective and do not address the problem in any seriousness. Tejinder Pal Singh, a consultant radiologist and ultrasonologist in Yamunanagar district of Haryana, believes that the tracker is effective mainly in telemedicine. Junior medical professionals capture the images and send them to seniors for expert opinion and further guidance. Other uses include surveillance and supervision of the work of juniors so as to identify faults and rectify them, he said. The images can be misused to harass doctors and they also violate a patient's privacy, he added. Tejinder Pal Singh does not think the tracker is a solution for the skewed CSR. A doctor will never use a machine with a tracker to do sex determination tests. It is like committing suicide, he said.

People like Sabu George and Varsha Deshpande believe that the tracking technology might not help the cause of the girl child in the long run. There was no evidence to show that the collection and interpretation of ultrasound images by the Appropriate Authorities had led to greater rates of conviction in foeticide cases. These are not the only issues. There is also a growing but worrisome belief that the Medical Termination of Pregnancy (MPT) Act is liberal and that the proliferation of across-the-counter abortion methods, including the availability of small and portable ultrasound machines, have put the girl child at risk.

Some aver that abortion records are not kept properly and that Form Fs are not maintained by the Appropriate Authorities. Such authorities are empowered not only to take criminal action but to search and seize documents, records and objects of unregistered bodies. They are also empowered to inspect hospitals, nursing homes and other institutions involved in performing ultrasound tests. But they faced an uphill task. Results of sex determination tests were given verbally by doctors and this was difficult to prove, and it was argued that there was a thin line between the medical reasons for termination of pregnancy and female foeticide. Also, agencies that carried out sting operations, on the basis of which cases were filed by the Appropriate Authorities, did not cooperate during the course of hearings.

The CSR for the National Capital Region also showed a further decline of two points from the previous Census. The average CSR was lower than the national average; the decline was almost by 49 points when compared with Census 1991. Among the districts, South and South-West Delhi recorded a CSR decline of 10 points over Census 2001, while the rest of the districts showed a marginal improvement but remained far below the national average.

Bijayalaxmi Nanda, Professor of Political Science in the University of Delhi and a member of the State Supervisory Board, feels that a lot of systemic correction was needed, including better monitoring, regular meetings, an efficient tracking of portable ultrasound machines, less emphasis on technological fixes and quicker disposal of cases by courts. Bijayalaxmi Nanda, who has been researching on the impact of conditional cash transfer schemes like Ladli for the promotion of the girl child, said that such schemes by their differential rewards weakened the resolve of people to have a second daughter. There were supply-side deficiencies as well, apart from the fact that several beneficiaries did not know about the conditionalities attached to the scheme. She was also worried that the population fix of small families still dominated the minds of policymakers.

There is little disagreement about the comprehensiveness of the law itself. The scepticism about interventions such as the tracker is well justified, and their efficacy, if any, should be reviewed dispassionately. Secondly, progressive laws such as the MTP Act should not be tampered with and blamed for the decline of the girl child population.

Last but not the least, the government must shed its obsession with controlling the size of the family under the garb of girl-child promotion schemes.