Region: Asia
Year: 2013
Court: Supreme Court
Health Topics: Child and adolescent health, Health care and health services, Health information, Hospitals, Sexual and reproductive health
Human Rights: Freedom from discrimination
Tags: Abortion, Abortion counseling, Access to health care, Access to treatment, Awareness, Clinics, Counseling, Diagnostics, Forced abortion, Health care professionals, Health care technology, Health care workers, Health data, Health education, Health facilities, Health promotion, Health records, Infant mortality, Maternal health, Medical records, Pregnancy, Sex-selective abortion, Termination of pregnancy, Testing, Unsafe abortion
The order is about the problem of sex-selective abortion in India. The Court assed the present situation and the various barriers that must be taken into account when States take steps to address this problem by raising awareness of the legal status of the issue.
The Parliament has taken steps to prevent sex selective abortion by enacting a series of legislative measures, with the primary one being the Preconception and Prenatal Diagnostic Techniques (Prohibition on Sex selection) Act, 1994. While these legislative steps had been taken, statistics demonstrated a lack of effectiveness of prevention of sex selective abortion and that often time society at large did not perceive the gravity of the crime.
In response to the lack of success stemming from the legislation, Parliament issued Order 8.1.2013 which required states to self-report on steps being taken to enforce the legislation. However, statistics revealed that again these measures were functionally unsatisfactory. It was recorded that there was no proper monitoring of institutions where girls were vulnerable to abortion and records showed that enforcement of the legislation was a slow and drawn out process.
In reaction to this, amendments were made to the legislation. In realization of the fact that institutions were often unaware of the law, Parliament issued amendments directing efforts to ensure states implement the Act effectively and that they keep up to date with new developments in the law.
The Court held that when raising awareness of legislation and legislative developments the state must also simultaneously raise awareness of the reasons and intentions which spurred the goal to prohibit sex selective abortion.
The Court recognized that there is a plethora of reasons for which states implementation of the Act has not been successful by solely raising awareness of the legal requirements. In previous cases, the court upheld the need to think collectively as a society and to raise awareness of the negative impact individualistic thinking could have on society as a whole. Following from this reasoning the court outlined the importance of highlighting the effect that sex selective abortion would have on the next generation in order to ensure institutions comply with legislation to achieve its prohibition.
The Court also draws from writers who have outlined that each child born is equal and the court holds that this equality encompasses equality of the sexes. They outline that in order for the Act to be successful society must be made aware of the equal role of women in society and this must be met with the determination of the state to raise awareness of equality in order to protect girl children from discrimination.
The court held that in order to enforce these laws effectively the awareness campaigns must encompass social and moral impetus for the Act in order to serve the purpose of implementing legislation effectively and to maintain “humanism”.
The Court made multiple orders, including having policy makers gather information and report on violations of the Act, ensure record keeping, map out unregistered clinics to ensure ultra-sonography machines were not sold to them, seize illegally sold machines and inform people of the Act’s obligations through workshops.
“We have gone through the chart as well as the data made available by various States, which depicts a sorry and an alarming state of affairs. Lack of proper supervision and effective implementation of the Act by various States, are clearly demonstrated by the details made available to this Court. However, State of Maharashtra has comparatively a better track record. Seldom, the ultrasound machines used for such sex determination in violation of the provisions of the Act are seized and, even if seized, they are being released to the violators of the law only to repeat the crime. Hardly few cases end in conviction. Cases booked under the Act are pending disposal for several years in many Courts in the country and nobody takes any interest in their disposal and hence, seldom, those cases end in conviction and sentences, a fact well known to the violators of law. Many of the ultra-sonography clinics seldom maintain any record as per rules and, in respect of the pregnant women, no records are kept for their treatment and the provisions of the Act and the Rules are being violated with impunity.” (pp. 5-6)