Saving the girl child
MEETA SINGH and KAVITA SRIVASTAVA
FOR the last decade now policy planners and lay people including women have been aware of the steep decline in the sex ratio.1 Misuse of medical technology has made the elimination of the female foetus far easier even as son preference as a value has further strengthened with the use of new reproductive technologies. The problem of sex determination, sex pre-selection and/or sex-selective abortion is rooted in the devalued status of women and it goes without saying that this needs to be addressed uppermost.
However, the manner in which this problem needs to be handled often has political leaders, public celebrities and powers that control the helm of affairs providing overtly simplistic solutions or articulating views that are steeped in discriminatory patriarchal value systems like, ‘If we can educate the girls, all will be fine’; ‘Women are more responsible for female foeticide than men’; ‘Women are women’s worst enemies, that is why it is women who indulge in female foeticide’; ‘No, people do not kill girls in the wombs. I run schools for girls and there are plenty of them around. There are so many girls!’ Such attitudes help in absolving them from any responsibility or accountability.
Or there is the other point of view which feels that too much emphasis is being given to the technicalities of the law; for instance, tracking the paper trail as outlined in the act in order to make the medical community accountable.2 It is argued that since sex pre-selection technologies are invariably one step ahead, using methods like ultra-sound would soon be outdated. Newer technologies would not even need an abortion due to pre-conception technologies: thus catching errant medical personnel would be futile as the technology would give complete control to the parents to decide the child’s sex. In short, the technology would move faster than our imagination of catching its follies. The focus thus should be on understanding why sons are preferred over daughters, as well as developing strategies that would transform the social institutions that uphold son preference.3
So what is the use of the law, it may be asked. We would at the outset like to state that since at present the act of sex determination, sex pre-selection and sex-selective abortion happens with the intervention of a medical professional, the law is the only tool to regulate this intervention and prevent blatant misuse of medical technology. To work with the law is not contrary to wanting to structurally attack son preference. Perhaps the challenge is to develop both these strategies simultaneously and build responsibilities in communities and the state agencies about working towards restoring a healthy sex ratio between men and women without undermining individual freedom.
The PC & PNDT Act, 1994 till year 2003 had a fate similar to the Child Marriage Restraint Act, 1929, Dowry Prohibition Act, 1961, or the Smoking in Public Places Act, where the law enforcers turned a blind eye and the perpetrators displayed a cavalier attitude, confident that the law was only a paper tiger.
The medical professionals were so arrogant that they did not even bother to get their machines registered; nor was there any attempt to maintain records. Many medical professionals actually believed that through sex-selective abortions they were instrumental in raising the status of the woman in her family and society by not allowing her to bear daughters. It took the intervention of the Supreme Court between the years 2000 to 2003 to make the state accountable for the implementation of the law.4
The 1994 law of the Union of India was built on the lines of the 1988 PNDT Act of the State of Maharashtra. Both laws were a fallout of the women’s movement’s demand for regulation of the practice of sex-selective abortion. In the preamble, the law clearly states that it is an ‘Act to provide for the regulation of the use of pre-natal diagnostic techniques for the purpose of detecting genetic abnormalities or certain congenital malformations or sex-linked disorders and for the prevention of the misuse of such techniques for the purpose of pre-natal sex determination leading to female foeticide, and for matters connected therewith or incidental thereto.’5
The law clearly defines the establishments that conduct these tests, i.e. genetic counselling centres, genetic clinics, and genetic laboratories as also the professionals who could conduct this test, i.e. a gynaecologist, medical geneticist and paediatrician; the conditions in which this test can be conducted; the prerequisites to be fulfilled before conducting these tests; the administrative structures that need to be set up for the effective implementation and regulation of this act, i.e. the Central and State Supervisory Board and the State Appropriate Authority and Advisory Committee; the procedure for registration of the establishments, grounds for cancellation or suspension of registration; offences and penalties, the maintenance of records and power to search and seize records.
Since the weakest link in the implementation is the law enforcer, the Appropriate Authority (AA) himself/herself, it is important to discuss this aspect. The main functions of the Appropriate Authority are to:
* Grant, suspend, cancel and renew registration of the clinics.
* Enforce the standards for ultra-sound clinics, genetic counselling centres, genetic clinics and genetic laboratory.
* Investigate the complaints of violation of provisions of act and rules.
* Initiate appropriate legal action against the use of sex selection techniques.
The challenge for those who wish to regulate the misuse of the law is to activate and strengthen this authority. Several states have addressed this, some of which are discussed here.
The state of Rajasthan is showing the way forward as far as the implementation of the PC & PNDT Act is concerned. At this point more than fifty doctors and medical personnel are being tried in the various courts under the act in Rajasthan. The first conviction relating to sex-selective abortion took place in Bharatpur on 23 June 2007. The conviction happened within nine months of the crime (August 2006) in a fast track court. Although the police have yet to arrest the medical personnel responsible for the heinous crime, the father and uncle of the dead female foetus have been awarded five and two years imprisonment respectively. More than thirty doctors violating the PC & PNDT Act, 1994 were restrained from practice by the Rajasthan Medical Council on prima facie grounds of violating the code of professional conduct, etiquette and ethics as laid out by the law. This process is ongoing.
The last twenty months have seen an intensive people’s campaign led by women’s groups and other civil society members including the media, against sex determination and female foeticide, the doctors who have been violating the law and the administration which has been negligent in its implementation.
Despite the Supreme Court pulling up the state government for not implementing the law to register clinics involved in ultra-sound in the year 2003, it took another year before the first case of violation of the act was filed in the courts of Rajasthan. A leading newspaper carried an advertisement of a three dimensional machine which could help see the baby in the womb. This blatant violation of the law would have gone unnoticed had it not been for women’s groups monitoring the implementation of the law, bringing it to the notice of the State Appropriate Authority. Nevertheless, it took the authorities more than nine months to file the required complaint in the court in March 2005, and the case is still pending in the courts although it is close to four years since the matter was exposed.
The campaign of making the state accountable for the implementation of the law got a major push with the sting operation carried out by the Sahara television channel which captured on camera over a hundred doctors openly violating the law. These doctors belonged to 22 districts of Rajasthan and the bordering cities of Palanpur in Gujarat, Gwalior in Madhya Pradesh and Agra in UP.
Women’s groups, students from colleges and other civil society members decided to force the prosecution of the errant doctors by the state administration and continue to monitor these cases. Currently, complaints have been filed against 44 doctors in the various first class magisterial courts of the state. It took the concerned appropriate authorities more than 18 months and constant pressure from the campaign to do so. In a historic move, the Rajasthan Medical Council (RMC) temporarily suspended the registration of four gynaecologists and three sonologists and the MTP (Medical Termination of Pregnancy) and ultra-sonology practice of 29 more doctors. This decision was a creative use of the Medical Council of India’s gazette notification of 2002, called ‘The Professional Conduct, Etiquettes and Ethics for Registered Medical Practitioners.’
In order to ensure action by the authorities, the campaign used diverse modes to raise the issue publicly, forcing the larger media houses to become conscious and bring cases of abandoned and dumped female foetuses to public notice. One newspaper even carried a large front page photograph of three foetuses found floating in a lake. Such coverage in newspapers resulted in a constant public discourse and shamed the administration for its negligence. The police and appropriate authorities were forced to file cases and complaints in courts and resulted in District and State Appropriate Authorities carrying out a thorough inspection of clinics in several cities of the state.
The campaign also monitored the court cases, particularly as clinics were moving the courts to recover their ultra-sound machines and restart their MTP practice. The campaign decided to intervene wherever possible. When the members of the campaign observed that the medical establishment was protecting some errant doctors, they organised protests outside individual clinics and hospitals which again had a very powerful impact.
The continuous pressure on the concerned agencies for the first time saw concerted and coordinated action at all levels including the District and State Appropriate Authority, the Rajasthan Medical Council, the public prosecutors and the larger administration. With five cases being taken cognisance of in the various courts in the districts, the campaign felt that it had made some headway. However, in July 2007, the government removed the Registrar of the Rajasthan Medical Council and replaced him with a puppet registrar who revoked the suspension of the practice of MTP and ultra-sonography of all the 33 doctors. Four of the doctors had been let off earlier by the council with a warning.
Fearing that the suspension of the licenses of doctors might have electoral implications for the ruling party, the new council chose the softer option of withdrawing the suspension order. This helped us understand that the doctors are threatened more by the action of the RMC than any action under the PC & PNDT Act, 1994, as court procedures are long drawn out and do not greatly affect their routine practice.
The campaign did not give up and once again in October and November 2007 organised major protest rallies forcing the government to take back its order of revoking suspension of various licenses.
While there was an effort at forcing action by the government and the various agencies against the doctors exposed by the media at various points in the last couple of years, there was also an understanding that the regulatory aspect of the law was not being enforced at all. It was only because of the campaign pressure that the highest body of monitoring and implementation of the PC & PNDT Act, 1994, the State Appropriate Authority met for the first time in June 2006. At present the campaign has issued legal notices to the health minister who is the chairperson of this body for violating the law, as he has not called the meeting in the prescribed period as laid down by the law.
A large number of cases would not have been registered were it not for the legal assistance provided by the PNDT cell, instituted by the Government of Rajasthan under pressure of the people’s campaign. This cell is providing legal inputs which include training the AAs to draft complaints and collect and document evidence. Even the Rajasthan Medical Council had to seek assistance of a lawyer from the human rights movement in order to use the law effectively.
The movement of civil society has forced the government machinery into action, resulting in positive policy changes in some states. PC & PNDT cells have been set up, both at the state and district levels, giving legal and other assistance to CMHOs and other statutory bodies. Budgets from National Rural Health Mission (NRHM) have been allocated for training of AA.
This campaign has had a multiplying effect on other campaigns. Some of the participant groups are creatively intervening with the law in their districts. An informal network of civil society groups6 in Alwar, Bhilwara, Sirohi, Barmer, Jhunjhunu, Bharatpur, Chittorgarh, Dholpur, Jaipur, Kota, Jaisalmer and other districts has started monitoring the paper trail as laid out in the law for genetic counselling centres. These groups have initiated legal proceedings against erring doctors. Groups in several districts are using the Right to Information for ferreting out details of implementation of the law, following which they have planned diverse actions. They have also forced a reconstitution of district advisory committees by ensuring the presence of NGOs and women’s groups on these committees.
Several groups throughout the state are also generating awareness among the youth, newly weds and community leaders. Such initiatives have overturned age-old traditions, viz. allowing the girls to light the funeral pyre of their deceased parents, and beating of drums and thalis (metal plates) to celebrate the birth of the girl child, a practice hitherto reserved only for sons. In Sri Ganganagar which has the worst girl child sex ratio, the Chamber of Commerce gathered more than seven thousand people for the Lohri festival in January 2008 which was dedicated to girls. This is contrary to tradition because Lohri is essentially a community celebration to bless sons and the mothers of sons.
It is important to mention here the case of shooting the messenger. The reprehensible act of the Rajasthan Police in filing cases against the Sahara reporters resulted in the media and the campaign jointly protesting against these human rights violations. As a result, the government high-powered committee set up to examine these irregularities, recommended that media be supported in sting operations and such initiatives not be seen adversely. The Superintendent of Police, who had encouraged the doctors to file cases against the Sahara Samay journalist, was transferred under pressure of the campaign.
Given below are some brief excerpts7 of initiatives in various states, representative of the legal and social battles that confront the enforcement of the law.
In March 2006, a Faridabad court convicted a Haryana based medical practitioner and his assistant for determining the sex of the foetus. The duo was sentenced to two years in jail and a fine of Rs 5000 each imposed under the PC & PNDT Act. A sting operation conducted in 2001 led to registration of the case in a lower court in Palwal, Haryana.
In the state of Madhya Pradesh, civil society groups have challenged the irresponsible decision of the State Advisory Board to reopen clinics involved in violating the PC & PNDT Act, 1994. The matter is pending with the Madhya Pradesh High Court, Gwalior.
Prior to initiating action against the ultra-sound centres in the district of Khammam, Andhra Pradesh, a district collector carried out an audit of the relevant documents which helped him ascertain the number of sex selective abortions, number of untraced cases and initiate action against the centres involved in sex determination in the district. Based on this experience, a similar exercise was carried out in Hyderabad.
Till August 2007, 59 cases had been registered against ultra-sound centres in Maharashtra and over 70 other cases were in the process of being filed. The Ministry of Health, Maharashtra, through an official gazette has agreed to pay Rs 15,000 to civil society organisations willing to conduct decoy operations against ultra-sound centres that violate the law.
Over the years, the campaign has thrown up several questions for debate which have been addressed from time to time with the support of national groups involved with the issue.
It has been observed that political agencies and implementors like the AAs lack the will to learn about and implement the law, and are unaware of their own role and responsibilities. So far the AAs have been the CMHO/CMOs (Chief Medical and Health Officers/Chief Medical Officers). But a recent directive from the Union health ministry appoints district collectors as the new AAs, the assumption being that doctors protect their colleagues and are unwilling to take action against their own professional brethren.
Activists argue that district collectors are so overburdened that they neither have the time nor the necessary expertise to effectively implement this law. As one Rajasthan-based district magistrate stated, ‘I am already chairing 260 committees in my district. Where do I have the time to head one more?’8 Who then should be the AA? Many activists have suggested that the Appropriate Authority should be a three member body comprising the CMHO, a legal expert and a social activist who both understand the law and are willing to spend time and effort to implement it.
The issue has often been stuck in the pro life versus pro choice debate. Second, it is argued that the MTP Act (Medical Termination of Pregnancy Act 1971) itself needs more safeguards and must be amended. The Lawyers Collective has argued that ‘We do not view the problem of sex selective abortions as a pro life or a pro choice issue. In the context of patriarchy and women’s inequality, the right to abortion needs to be considered as a historical necessity. The biological burdens of pregnancy and childbirth are evident. In addition, women are constrained by socially defined roles as being better care givers. This severely impinges on their freedom and autonomy. This necessitates the recognition of the right to abortion.9
Another important reason is the patrilineal structure of society, where the identity of an individual is derived from the father. It is essential for women pregnant outside social sanction (such as widows, or unmarried women) to have unimpeded access to abortion services. Therefore, the final decision about whether to continue with a pregnancy or not has to vest with the woman.
It does not, however, follow from this that the right to abortion carries with it the right to abort a foetus for the reason that it is female. The recognition of this right to abortion, necessitated by the reasons given above, is an individual right. This right pertains to the decision to abort any foetus irrespective of the sex. If the sex of the foetus is identified and the decision to abort is made on considerations of the sex of the foetus then it is an act of discrimination. The decision to abort a female foetus constitutes a gender specific discrimination. In effect, while female sex-selective abortions need to be stopped as an emergency measure through multi-pronged approaches, the MTP Act must not be tampered with.
Indeed the practice of sex selective abortions continues to remain widespread despite the PC & PNDT Act and much remains to be done to galvanise the administrative machinery as well as civil society into effective action. So far it has been a case of too little too late.
1. Census of India 2001 figures.
2. PC & PNDT ACT 2003: Handbook on Pre Conception and Pre Natal Diagnostic Techniques Act 1994, Government of India, 2006.
3. Jashodhara Dasgupta, jashodhara@ sahayogindia.org on email.
4. In the year 2000, Lawyers Collective represented CEHAT, MASUM and Dr Sabu George in a public interest litigation (PIL) before the Supreme Court of India. This PIL was filed seeking directives from the Supreme Court for the implementation of the Pre Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act 1994. Despite its enactment in 1994, little had been done in terms of implementing the law. During the course of the proceedings before the Supreme Court, spanning over three years, the court took on the unique role of monitoring the implementation of the law and issuing orders for its proper implementation. The implementation of the law with right rigour was therefore, commenced only with the issuance of this Supreme Court directive.
5. PC & PNDT Act, 2003.
6. Rizwan, Centre for Advocacy and Research; Malay, Prayatn Sanstha; Dr Narendra Gupta, Prayas, personal communication.
7. Second National Convention on Legislative Coordination for Action on Women’s Issues – a report by Women Power Connect, August 2007.
8. Rashme Sehgal, ‘DMs in charge, but cases continue to rise’, The Asian Age, New Delhi, 9 January 2008.
9. Indira Jaising, C. Sathyamala and Asmita Basu, ‘From the Normal to the Abnormal – Preventing Sex Selective Abortions Through the Law’, Lawyers Collective (mimeo).
Status and Effectiveness of PC & PNDT Act in Rajasthan: A Research Report by Prayatn, www.prayatn.org
K.S. Tomar and Pradeep Sharma, ‘Two convicted for foeticide’, Hindustan Times, Jaipur, 27 June 2007.
‘Cancel registration of 30 docs’, Hindustan Times, Jaipur, 29 November 2007.