Haryana witnesses the country's first conviction for using sex determination technologies, on a complaint filed in 1997.T.K. RAJALAKSHMI in New Delhi
"DUE to the illegal acts of persons like the convicts, the sex ratio is declining day by day in the country... The day is not far when there would be no girl child around." This grim warning was issued by a Sub-Divisional Magistrate in Faridabad on March 28 while sentencing two persons to two years' rigorous imprisonment each for violating the Pre-Conception Pre-Natal Diagnostic Techniques (Prevention of Sex Determination) Act, 1994. This is the first conviction since the inception of the Act.
The conviction comes as a morale-booster for those who have been crying out against the decline in the numbers of girl children. For long, it has been felt that those sections of the medical community that peddle sex-selective technologies with impunity should be brought to book. Balbir Singh Dahiya, retired Civil Surgeon and former Director of Health Services, Haryana, who initiated the complaint in 1997, is, however, not very happy. The reason is the delay in the course of justice.
While Census 2001 showed a marginal improvement in the adult sex ratio with 933 females per 1,000 males as against 927 in 1991, the child sex ratio (CSR) in the 0-6 age group declined from 945 in 1991 to 927 in 2001. Haryana and Punjab, two of the more economically prosperous States have CSRs that are among the lowest in the country.
In 14 districts nation-wide, most of them concentrated in Punjab and Haryana, the CSR is less than 800. Most of the high-CSR regions lie in the tribal and northeastern States.
Said Dahiya: "It is a community that is already aware. Do they not know that it is criminal to do sex selection and then abort the female foetus? They [the providers] have tremendous clout and that is one reason why difficulties arise in enforcing the Act."
The PCPNDT Act regulates but does not deny the use of pre-natal diagnostic techniques, including ultrasonography, to detect genetic abnormalities or other sex-linked disorders in a foetus. The problem, therefore, does not lie with the Act. Its implementing agencies are the State Appropriate Authorities, each of which is a three-member body with the Director of Health Services, a member of a women's organisation and an official of the State Law Department as members. At the district level, the Chief Medical Officer or the Civil Surgeon is the Appropriate Authority. Advisory committees and supervisory boards assist and monitor the implementation of the Act. Moreover, a Central Supervisory Board consisting of 24 members under the Minister for Health and Family Welfare oversees the overall implementation of the Act.
The Appropriate Authorities have the powers to summon any person who may be in possession of information relating to violation of the provisions of the Act. They can issue search warrants for any place suspected to be practising sex selection techniques or pre-natal sex determination and seize and seal any objects used for the purpose. The authorities can conduct independent investigations on a complaint against a breach of the provisions of the Act; take the complaints to the court; and initiate suo motu and appropriate legal action against the use of any sex selection technique. The main violations under the Act pertain to non-registration of centres or clinics, non-maintenance of records, communication or determination of the sex of foetuses and advertisements about facilities for such determination. The Act is clear that the court will take cognisance of an offence only on the basis of a complaint made by the Authority and that the investigating powers rest with the latter alone.
According to an informed source in the Ministry, in the majority of States it was found that the person seeking the illegal service and the service provider were both in agreement to defeat and circumvent the provisions of the law. A total of 383 violations had come to light until now with non-registration topping the list of offences. Thirty-seven instances were found where the sex of the foetus had been communicated and 28 instances of advertisements about sex selection had been noted. The general experience was that wherever clinics offering this test had been sealed, owing to lack of follow-up action by the State agencies the majority of them were found to have resumed their operations.
Given the dismal CSR in the country, and the Supreme Court directive of 2003 to State governments to enforce the law banning the use of sex determination technologies, the Ministry set up a National Inspection and Monitoring Committee (NIMC) in October last. The NIMC conducted raids in some of the districts in Maharashtra, Punjab, Haryana, Himachal Pradesh, Delhi and Gujarat. In April, it conducted raids on three clinics in Delhi. In its reports sent to the Chief Secretaries of the respective States, the committee observed that the Authorities had failed to monitor or supervise the registered clinics.
Rattan Chand, PCPNDT Director and NIMC convener, told Frontline that at best the Centre could play a supervisory role. The onus to take action on the reports rested on the State agencies. For instance, Malini Bhattarcharya, a member of the National Commission for Women (NCW) who is on the committee, said that when it was learnt that women from Tripura were being purchased as brides for single men in Haryana, the State Women's Commission along with the NCW held a public hearing. Haryana has a serious deficit of girl children. There have been several instances of brides being purchased from poor families from other States. Malini Bhattacharya, a former Member of Parliament representing the Communist Party of India (Marxist), said: "It wasn't just poverty. There were other factors, including the desire of parents to get their daughters married. Evidently, they had no clue regarding the condition of their daughters." Some 50 families gave evidence at the hearing. There were some instances of genuine marriages, but where there had been complaints of women being untraceable or sexually exploited, investigation and intervention were required. Two agents were arrested subsequently. Tripura, she said, was one of the few States to have legislation making marriage registration compulsory. The NCW had suggested that parents ensure that the marriages were registered properly, she said.
It has also recommended that State governments set up State-level monitoring and inspection committees. "There is a clear conspiracy between the service providers and the service takers," she said. The NIMC had found that there was under-reporting in the number of cases of ultrasonography done and there was no follow-up on court cases. Rattan Chand said that even if the NIMC conducted raids, it could only send a report to the highest levels in the State government. It was up to the State authorities to act on it.
Independent "sting" operations conducted by sections of the media with the knowledge of the Authority were not successful because of the non-compliance of basic procedures of the Act by State agencies. Kalindi Deshpande, vice-president, All India Democratic Women's Association (AIDWA), told Frontline of an instance where the organisation sent a decoy to a doctor widely known for conducting sex determination tests. The clinic was located in the Pimpri Chinchwad Municipal Corporation in Pune district. The doctor turned out to be a member of the Appropriate Authority for Pune (Rural) district. The "sting" was conducted successfully. AIDWA had informed the Municipal Authority that an operation would be carried out but did not reveal the identity of the doctor. The serial numbers of the currency notes to be paid to the doctor were registered with the local Authority. Kalindi Deshpande said that while the normal rate for sonography was Rs.500, the doctor charged the decoys Rs.5,000.
The Authority conducted an inquiry and a case was filed under the relevant provisions of the Act. On the date of the first hearing, the Magistrate asked the Medical Director of the Corporation to produce the official gazette notification appointing him the Authority under Clause 17(2) of the Act.
The Director contacted the Deputy Director Health Services, Maharashtra, who is in charge of the implementation of the Act, and asked for a copy of the official gazette. He was informed that it was not available.
The activists then knew it was going to be a long battle. It was only on February 7 that AIDWA managed to get hold of a copy of the gazette. It found that the notification for the authorities in Municipal Corporations had come into effect only on February 3. As the sting was conducted in January and the case was filed the same month, the activists were told that the action taken by the Authority was not valid with retrospective effect. The doctor's licence was not suspended; he only resigned his membership of the Pune Authority.
Kiran Moghe, State president of AIDWA, and Kalindi Deshpande said that it was all the more shocking that the Maharashtra government, while exhorting non-governmental organisations to conduct decoy cases to detect violations of the Act, had itself not complied with the basic provisions of the Act.
The Pimpri-Chinchwad Corporation was not an isolated case. A survey conducted by AIDWA found that some municipal corporations took at least eight years to publish the notification in the official gazette.
Dahiya feels there should be fast-track courts to dispense with pending cases. The Appropriate Authorities had to be made more accountable. He is anguished that governments have yet to wake up to the consequences of high maternal morbidity and mortality, which are induced by several factors, including anaemia and septic abortions.
Haryana may have finally found a way to prevent the declining CSR, the most serious fallout of sex selective abortions, but the lone conviction will not make the implementation of the law easy in the country.