Sex-determination based abortion perpetuates gender inequalities: Delhi HC

PTI, Apr 25, 2023, 5:38 PM IST

Abortion based on sex-determination is a powerful method of perpetuating gender inequalities, the Delhi High Court has said, emphasising the law must have teeth to sternly deal with such situations till attitudinal changes at family level are achieved.

The restriction of access to foetal sex information is directly related to the problem of misogyny which affects women of all socioeconomic backgrounds not only in this country but globally as well, the court said.

Justice Swarana Kanta Sharma made the observations while passing a slew of directions to the authorities for a strict implementation of the Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994 (PCPNDT Act).

The high court’s order came while refusing to quash an FIR against a doctor who was booked under several sections of the PCPNDT Act after a raid was conducted at a hospital here on information regarding illegal sex determination.

It, however, set aside as bad in law the cognisance taken by the trial court in the absence of any complaint filed by appropriate authority under Section 28 of the Act. The court said the well-intended and well-implemented PCPNDT Act and Rules are means for intervention to combat gender imbalance.

”The social context of the Act as well as the offence need to be remembered, and it has to be kept in mind that the gender-based violence, whether be it safety of a female child after birth or even when she is not born, is not only the concern of the State, but also of the Courts of law,” it said.

”While the attitudinal changes have to start from every family, till the said goal is achieved, the law must have teeth to deal with such situations with a stern hand,” Justice Sharma said.

The Act undoubtedly has had a positive impact to some extent in creating fear of conducting such tests, however, the need for a safe womb for a female foetus was another issue which was sought to be addressed by this Act, he said.

The court said the past sex ratio date demonstrates a preference for male offsprings, and various governments have implemented several schemes for ensuring the safety of a girl child, however, attitudinal changes are essential to ensure safety of an unborn female.

”Sex-determination based abortion is a powerful method of perpetuating gender inequalities. The restriction of access to foetal sex information is directly related to the problem of misogyny, which affects women of all socioeconomic backgrounds not only in this country but globally as well. The purpose of controlling knowledge of sex or gender is to protect expectant women and their unborn child,” the HC said in the 50-page judgement.

It said the dual violence faced by a woman on the basis of her gender in itself is ”abhorrent”. Earlier a woman was pressured by her family members to give birth only to a male child, however, in certain situations, she herself wanted a boy child considering the fact that once she was old, she would have a son to support her, it added.

”Women also had insecurities in certain cases that in case they were not able to give birth to a male child, they would not be respected or valued by family members as well as the society,” it said.

It said the contents of the Act and Rules should be brought to the notice of the appropriate district authorities, investigating officers, as well as prosecutors.

”Training and sensitisation programmes can be organised for the officials who are concerned with the implementation of PCPNDT Act,” it said.

The HC said it would be appropriate if online portals and websites are created for lodging complaints and to notify and inform the general public about the procedure, place and mechanism to lodge such a complaint.

The court said its observations and directions should be placed before the Union ministries of Law and Justice as well as Health and Family Welfare and the Delhi government, Delhi Police and Director (Academics), and the Delhi Judicial Academy.

The concerned ministries or departments of central and state government will ensure that such steps are taken and compliance is filed within three months, it said.

The HC said although India has made considerable progress towards achieving gender equality, the preference for sex-determination still exists and despite efforts to eliminate this bias, it has been challenging to completely eradicate it.

”This statement is being made to emphasise the effectiveness of current legislation and the above observations made by this court are intended to highlight the impact of existing laws and regulations on society. This court’s aim is to demonstrate how these laws have influenced people’s behaviour in their day-to-day lives,” it said.