This post is part of a series that seeks to explore judgements relating to gender justice and equality in the Indian Courts. As a common law system, we know that it is the combination of legislation passed in parliament and interpretations made by judges that make up the laws that affect women and girls across India. We hope this series provides an insight into how past cases might impact future ones.
The CEHAT case is a 2003 landmark judgement that criminalizes the practice of sex-determination at a prenatal stage itself in order to eradicate female infanticide. It is an important judgment that focuses on how the mere enactment of law is not the solution, and the judgment highlights how implementation and execution are equally important.
Background of the case
The case was filed in the form of a Writ Petition under Article 32 of the Constitution against the Union of India due to the alarming decline in sex ratio in the 2001 census. Three petitioners (Centre for Enquiry into Health and Allied Theme, research centre of Anusandhan Trust based in Pune and Mumbai; Mahila Sarvangeen Utkarsh Mandal (MASUM) based in Pune and Maharashtra; Dr. Sabu M. Georges, who had done extensive research in the field), concerned about the implementation of the Act, moved the Union of India to Court for effective implementation and execution of the provisions of the previously enacted Pre-Natal Diagnostic Techniques Act, 1994, which had failed to effectuate its goals of preventing female feticide.
Highlights of the case
The judgment narrates the efforts of the government made in a course of three years from the day of filing of the petition in order to implement the enacted law, to monitor the various medical institutions involved in the practice, and eventually eradicate the practice of female feticide. The parliament enacted the Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 (PNDT Act) which came into force on January 1st, 1996. The act was renamed as Preconception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 post amendment in February 2003, six months before this judgement was delivered. Despite being enacted, neither the State Governments nor the Central Government took appropriate actions for its implementation. The petitioners filed a class action suit to direct the government to issue appropriate and effective orders so as to actualise the intentions of the Act. The court in these years has acted as a monitoring authority for effective implementation of the Act.
The journey of three years:
On 4th May 2001 the courts directed the Central Government to immediately start spreading awareness about the consequences of the practice and also to conclude meetings every 60 days with “vigour and zeal” to monitor the efforts of various states. The Central Supervisory Board (CSB) that was a body constituted under the Act, in addition to spreading awareness and meet every 6 months to review and monitor the implementation of the Act, was directed to keep a track of technological advancement in the field to amend the Act as required. The States and Union Territories, in addition to spreading awareness, were directed to appoint “Appropriate Authorities” as mandated by the Act which reports to the CSB every quarter. The Appropriate Authorities, in addition to furnishing quarterly reports to the CSB, were directed to take immediate criminal action against offenders found violating the provisions of the Act.
The Court had set the next date of hearing on July 30th 2001, however, since various States and Union Territories failed to comply with the order, the next order was passed on September 19th 2001. The court again warned the States and Union Territories to effectively comply with the mandates of the Act and also clarified to the Appropriate Authorities that it was empowered to take criminal action against violators.
On 7th November 2001, the Court directed the formation of the National Committee (National Monitoring and Implementation Committee - NMIC) to monitor the implementation of the Act.
On 11th December 2001, the Court directed certain States to disclose names of members of Appropriate Authorities. It also clarified that ultrasound machines would only be given to properly registered clinics.
The Act was renamed on March 31st 2003 in order to clarify the firm stand against the practice of sex determination before birth.
The present judgment directs the Government to comply with the Act in every manner and with immediate effect. It emphasises on efforts that have to be taken by the Government to spread awareness about the practice along with proper functioning of the system involved. Quarterly reports and records of meetings were mandated to be made public. It also directed the continuation of the National Monitoring and Implementation Committee, till the Act was properly implemented throughout the territory.
Towards Gender Justice? Maybe!
The judgment presents a rather harsh reality of the Indian Society. The court observed that various states like Gujarat and Maharashtra, despite doing well economically, were ranked amongst the lowest under sex-ratio.
It is unfortunate that it took a formal judicial decision to safeguard a human right so fundamental to society, which also portrays an abysmal condition of various practices against females. The Court was not ignorant in acknowledging the graveness of the practice and the real picture it painted of the condition of female justice. It is, however, commendable that after the petition was concluded, active efforts were taken by the Government to spread awareness about the practice and to check the implementation of the Act.
The National Monitoring and Implementation Committee is still in existence and keeps a check on the compliance of the Act. It can be debated whether the existence of the temporary Committee even after 15 years of passing of the judgement shows the real picture of the efforts of the government. The NMIC was constituted as a temporary institution to monitor the implementation of the Act and survives till today. It also highlights how the mentality of the Indian Society might not have become as progressive as it was expected by the Court in 2003. The 2011 census, however, shows an upward trend in the sex ratio: 943 females per 1000 males in comparison to the 2001 census that stood at 933 females.
Implications of the case
The Court in this case acted as a monitoring authority over the Government with respect to the PNDT Act. It was harsh in pointing to the inability of the Government at the Centre and State level, to implement an important legislation as well as the reality of the Indian mindset towards Girls. The Court acknowledged that the declining sex ratio shows that females were still considered a burden by the society despite having several laws for protection of female rights. The court also observed that dowry can be an important reason for families to abandon responsibility of female child, and although there was an anti-dowry legislation in place, it too, in fact was ineffective.
In 2018, we cannot be sure how the landmark judgement changed the course of gender justice in India. The 2011 census although shows an upward trend in sex-ratio, but numbers can never be a firm foundation for surety. 2011 census also concludes a huge rise in overall population of the country. However, it can be safely concluded that prima facie the general public is aware of the consequences of sex determination practices and the society has been sensitised about the issue. Many Hospitals now carry disclaimers mentioning that they do not indulge in practice of sex-determination tests. As far as complete eradication of practice is concerned, or a better picture in the various gender index, it is safe to conclude that it is still a long journey that the Indian Society, as a whole, has to endure.
Shradha Thapliyal is a Masters student at Azim Premji University and a Research Assistant at One Future Collective. A graduate of Dr. RML National Law University, Lucknow, she is currently specialising in Law and Development, and has a keen interest in specific field studies of social issues presently concerning the Indian Society.