Falling child sex ratio, systemic bias: Why India banned checking a baby’s sex in the womb

The Supreme Court Thursday (June 11) dismissed an appeal of a Maharashtra-based doctor seeking to quash proceedings against him filed under the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (PCPNDT Act). The court looked at the history of the Act and the prevalent issue of the skewed sex ratios in many parts of India, and said that statistics show that while progress has been made in improving the ratio, it is incomplete and uneven.

Between 1981 and 1991, the child sex ratio, that is, number of girls per 1,000 boys in the 0 to 6 age group, saw a decline in India from 962 to 945. As ultrasound techniques began mushrooming around the time, the PCPNDT Act was passed, making pre-natal determination illegal. This was with the intent to prevent expectant mothers from being informed that they were going to give birth to a girl child, and subsequent sex-selective abortions owing to family or societal pressures.

While many countries allow pre-natal sex determination, they outlaw sex-selective abortion. Indian law prohibits both.

The Act prohibits sex selection, before or after conception, and regulates pre-natal diagnostic techniques, limiting them to detecting abnormalities or metabolic disorders, while preventing their use for sex determination. For the first time, the law provided regulations to ultrasound clinics for sonography of pregnant women, including mandatory registration. The law provides for cancellation or suspension of registration, if any violations are found.

The Act also has a criminal aspect, with violations by any person or organisation including the clinics, if found violating the law, facing punishment extending to five years in jail.

As sonography at diagnostic clinics are done throughout the pregnancy, a crucial part of the law focuses on maintenance of records, requiring clinics and centres to maintain and update paperwork, including an “F” form detailing the medical history and other details of the patient, which are mandatory to be filled under the Act.

Over 30 years after the Act was enacted and subsequently amended in 2002 and 2013, violations remain prevalent. Awareness campaigns and policy decisions focused on curbing sex determination in many states, particularly Haryana and Punjab. Health officials, gynaecologists, and staffers of diagnostic clinics have faced criminal charges for alleged violations, including informing expectant mothers of the sex of their unborn child and aiding illegal abortions of the girl child.

The case against the Maharashtra doctor

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Dr Ramesh Bole, a medical practitioner based in Maharashtra’s Nanded, had approached the Aurangabad Bench of the Bombay High Court in 2017. He had challenged a magistrate court’s order issuing notice to him under the PCPNDT Act.

Bole ran a sonography centre which was inspected by the Civil Surgeon in Nanded after receiving an anonymous complaint. The authority had said that barring the “F” form register, no other records were shown. In seven cases, signatures and the declaration of the pregnant women were not obtained, and in nine cases, the signature of the doctor who performed the sonography was not taken.

The Civil Surgeon also said that there were other irregularities and issued a notice, based on which Bole appeared before the authority and gave an explanation that the employees at his hospital were given the task of completing the forms and in some cases owing to rush at work, may have missed out on some signatures or details.

Bole had said that this was only a minor irregularity and could not be said to prove any nexus with regards to sex determination. According to him, all the documents were uploaded on the requisite website as per state government rules and there was no intention to hide any details.

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The High Court had rejected his petition and said that the Act leaves no scope for any error or mistake in maintenance of the records. The court said that the extent and manner of the alleged violations is a matter of trial. The doctor then approached the Supreme Court against the High Court’s order, which also dismissed his plea.

What the Supreme Court said

The Supreme Court referred to previous judgments on the Act, like Voluntary Health Association of Punjab v. Union of India, where it had said that female foeticide leads to manifold social problems and has its roots in social thinking based on erroneous notions, egocentric traditions, and perverted perception of social norms.

The top court said that Census data from 1991, 2001, and 2011 showed that the national child sex ratio declined from 945 to 927 to 919 respectively, “reflecting the severity of the imbalance that prompted stringent implementation of the PCPNDT Act”. It noted a recovery in recent years to 929 females per 1,000 males at birth, but called it a “partial course correction” and not “a path of true equality and acceptability”. It said several states still report sex ratios at birth less than the national average.

It referred to 10 schemes by Central and state governments, such as the Beti Bachao Beti Padhao (girl education) and the Pradhan Mantri Matru Vandana Yojana (maternity benefit), which aim to curb female foeticide and emphasise on empowering women. The court said these schemes showed continued efforts to eradicate the systemic bias suffered by the girl child in an “inherently patriarchal system”, with much progress made but much left to be desired.

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“Consequently, the integrity and strict enforcement of welfare-oriented legislation such as the PCPNDT Act remain essential along with efforts continued and earnest, till the time there is a widespread change in mentality and what till now, is perceived as the ‘inherent weakness’ of the woman, is replaced by true equality, when there will dawn a realisation that efforts such as these are no longer required,” the bench of Justices Sanjay Karol and Prashant Kumar Mishra said.