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An Act on paper

Print edition : Jun 09, 2001 T+T-

In the context of a declining sex ratio, the Supreme Court directive to the Central and State governments to implement strictly the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act assumes significance.

Ladka marey kambakth ka; Ladki marey bhaagwaan ka (It is a fool who loses his male child: it is the fortunate one who loses a girl child).

THIS is a saying in the northern and northwestern parts of India. There may be regional variations in the wording, but the mindset remains the same. One even comes across banners that exhort people to invest Rs.500 now (to determine the sex of the unborn child) rather than spend Rs.10 lakhs after 20 years (as dowry). That these have serious implications is evident from the provisional results of Census 2001, which were released recently. The sex ratio for the total population of the country has increased from 927 (females per 1000 males) in 1991 to 933 in 2001. However, the sex ratio for the population of children up to six years has declined from 945 in 1991 to 927 in 2001. The decline is most pronounced in relatively prosperous States such as Punjab and Haryana. Behind this lies a story of neglect, discrimination and even downright murder.

Taking cognizance of the link between pre-natal sex determination tests and the declining sex ratio among children, the Supreme Court, in a recent judgment, came down heavily on the Central and State governments for having failed to implement the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994. The Act, which came into effect in January 1996, provided for "the regulation of the use of pre-natal diagnostic techniques for the purpose of detecting genetic or metabolic disorders or chromosomal abnormalities or certain congenital mal-forma- tions or sex-linked disorders and for the prevention of misuse of such techniques for the purpose of pre-natal sex determination leading to female foeticide."

The judgment was delivered on May 4 on a petition filed by two non-governmental organisations (NGOs) - the Centre for Enquiry into Health and Allied Themes (CEHAT), Mumbai, and the Mahila Sarvangeen Utkarsh Mandal (MASUM), Pune - and Sabu M. George, who received his academic training in public health and nutrition at Johns Hopkins University School of Hygiene and Public Health, Baltimore, and at Cornell University, New York. The petitioners contended that techniques such as pre-natal genetic diagnosis (PGD) violated the Act and sought from the court directions to the Central and State governments to implement the Act in full by appointing appropriate authorities and advisory committees at the State and district levels in order to ensure that the Central Supervisory Board (CSB) that was set up under the Act met every six months. The Central and State supervisory boards had not met regularly and reviewed the implementation of the Act, they said. The petitioners sought a ban on advertisements relating to all sex selection techniques before or during pregnancy. The Supreme Court issued notices to the Central and State governments. In a counter-affidavit, the Central government stated that the CSB had met only four times since its constitution on February 5, 1997.

The petitioners said that the appropriate authorities did not function in most States and that applications of many clinics for registration were pending with the respective governments. As per the Act, the appropriate authorities have the power to grant, suspend or cancel the registration of genetic counselling centres and are required to investigate complaints about any breach of the Act. They are also required to seek the advice of the Advisory Committees (comprising medical and legal experts, social workers, and so on) while taking a decision on an application for registration or on suspending or cancelling a registration. Many "genetic clinics", the petitioners held, were functioning without registration. The petition cited the sex ratio figures from the 1991 Census.

Pursuant to the Court order, the Ministry of Health and Family Welfare has set up two technical sub-committees to look into the question of amending the PNDT Act so as to strenghthen it further. The Central government and the governments of the States and Union Territories have to report to the Court on or before July 30, 2001 about the measures taken by them in response to the order.

THE Lawyers Collective, which took up the case on behalf of the petitioners, presented figures to prove the inaction of various State governments on this front. According to it, in Punjab the appropriate authority has been set up but only 15 clinics have applied for registration. In Haryana, none of the clinics has applied for registration. In both the States, genetic clinics have been proliferating. Haryana has mobile ultrasound clinics visiting villages.

In Himachal Pradesh, no appropriate authority has been appointed at the district level and no clinic registered. In Uttaranchal, the sex ratio among children dipped from 948 to 906 but the State government has not responded to the Supreme Court's notice. In Delhi, where the ratio was down from 915 to 865, the appropriate authority has not registered any application. Similar is the situation in Rajasthan, where the ratio has dropped from 916 to 909. In Uttar Pradesh, the ratio has come down from 927 to 916, but the State government has not filed an affidavit in the Supreme Court. As a result, it is not clear whether any mechanism to control and regulate sex determination tests exists in the State. Bihar is in the process of creating an appropriate authority. Although the Arunachal Pradesh government has not set up district-level advisory committees, it has been submitting regular reports to the Government of India.

In Maharashtra, where the child sex ratio has dropped from 946 to 917, 36 clinics have been registered. The State government has registered a case against two doctors for violating the law and has given publicity about the Act and the need for registration for pre-natal diagnostic clinics. In Andhra Pradesh, where 43 clinics have been registered, the government has organised regional workshops and placed advertisements in newspapers as part of its campaign against sex selection.

Kerala's performance is impressive as far as the implementation of the Act is concerned. It received 493 applications but it is not clear how many clinics have been registered. The State government has issued press notices asking clinics to register themselves with the appropriate authority. Tamil Nadu has also made progress on this front. Of the 940 clinics that collected the application forms, 561 have been registered. Two cases have been filed against doctors for violating the Act.

It is apparent that most of the State governments have failed to get the clinics registered. Registration, says a member of the Lawyers Collective, will help take action against errant clinics.

The Supreme Court took cognizance of all forms of inaction by the governments. It observed that many State governments took one year to file their affidavits in response to its notices. Although the Act was passed by Parliament five years ago, neither the State governments nor the Central government had taken steps to implement it, it said. The court directed the Central government and the CSB to launch media campaigns in order to create public awareness against the practices of pre-natal sex determination and female foeticide. The advisory committees should strictly adhere to the legal stipulation that the period between their two meetings should not exceed 60 days, it said.

The order held that it was the responsibility of the Central government to ensure that the CSB met once in six months. It directed the CSB to get the appropriate authorities in the States and Union Territories to submit quarterly reports on the implementation and working of the Act. The CSB was also directed to examine whether the Act needed any amendment in view of the emerging technologies and the difficulties in implementation. The State governments have been directed to appoint appropriate authorities at district and sub-district levels and advisory committees at the State level. The State governments should take measures to create public awareness about this issue and submit quarterly reports to the CSB about the implementation of the Act, it said.

WHILE factors such as poverty and the dowry system play a crucial role in people's preference for the male child, the bias against the female child among people who are relatively well-off needs an explanation. Better living standards do not necessarily ensure a better deal for the female child. This is evident from the fall in the child sex ratio in States with high per capita consumption, such as Haryana and Punjab.

In Haryana, there has been a secular decline in the overall sex ratio. But the extent of the decline in the child sex ratio is shocking. It has fallen from 879 in 1991 to 820 in 2001. In 1991, the child sex ratio was 14 points higher than the overall sex ratio, but now it is down by 41 percentage points. The ratio is below 800 in districts such as Rohtak (796), Ambala (784), Sonipat (783) and Kurukshetra (770). Incidentally, the State's literacy rate of 68.59 per cent is higher than the national average (65.38 per cent). Although the Haryana government has directed civil surgeons to step up vigil on private clinics in their districts and constituted an advisory committee, these measures are perceived as half-hearted ones.

The State follows a population policy that is based on disincentives. The Panchayati Raj Act in the State prohibits persons with more than two children from contesting elections. According to Inderjit Singh, secretary of the State unit of the Communist Party of India (Marxist), there have been instances of elected persons being removed from office after the birth of a third child. But the combination of the system of patriarchy, feudalism and medical technology tends to perpetuate discrimination on the basis of sex.

The Planning Commission has asked the Punjab government to conduct a probe and submit a report on the decline in the sex ratio in the State. The Akal Takht has come out strongly against the practice of female foeticide. After a meeting of the five head priests, Jathedar Joginder Singh Vedanti declared that female foeticide violated the tenets of Sikhism and that offenders would be excommunicated. However, it is not clear whether the punishment would extend to those who run pre-natal sex determination clinics. The Jathedar's message said that Sikhs constituted a progressive community in which women enjoyed a high status.

Union Health Minister C.P. Thakur has warned that the registration of doctors involved in practices such as female foeticide will be cancelled.

But fiats, whether they are issued by religious or temporal authorities, will have little effect if the basic socio-economic problems that cause the fall in the sex ratio remain unaddressed.