Female foeticide & PC-PNDT Act, 1994.                                                                              -by Ron...
The perusal of the directions in the form of total six orders is sufficient to reflect that the SupremeCourt has to in thi...
Girish Memorial Charitable Trust vs State Of Haryana And Others 8The decrease in the female sex ratio is alarming. The gir...
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Female foeticide


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Female foeticide

  1. 1. Female foeticide & PC-PNDT Act, 1994. -by Ronak Karanpuria1 The greatest destroyer of peace is abortion because if a mother can kill her own child, whatis left for me to kill you and you to kill me? There is nothing between. Mother Teresa2"Every child comes with the message that God is not yet discouraged of man." ~Rabindranath TagoreAn Indian proverb expresses this disdain for daughters more colorfully “raising a daughter islike watering a shady tree in someone else’s courtyard”.When a system of power is thoroughly in command, it has scarcely need to speak itself aloud;when its workings are exposed and questioned, it becomes not only subject to discussion, buteven to change. Kate Millett3Feminism becomes impoverished liberalism if its only meaning is "anything goes” 4An infant in ventre sa mere, or in the mothers womb, is supposed in law to be born for manypurposes. It is capable of having a legacy, or a surrender of a copyhold estate made to it.It may have a guardian assigned to it; and it is enabled to have an estate limited to its use, and totake afterwards by such limitation, as if it were then actually born 5 William Blackstone, Commentaries 1:120--41IndiaThe State is under a Constitutional obligation to pursue and implement a policy eliminatingdiscrimination against woman. It is also more important as India was signatory to the 1. World Conference on Human Rights (1993) at Vienna and 2. The Convention on the Elimination of all forms of Discrimination Against Woman (CEDAW) 1979, 3. Fourth World Conference an Women (1995) at Beijing.These conferences have specifically condemned gender based discrimination, violence and allforms of sexual harassment and exploitation.6(CEHAT) and others -Vs- Union of India and others (2003) 8 Supreme court case 3981 1st year LL.M. NLSIU, Bangalore ph:07411217916, 09829328537, ronak.karanpuria@gmail.com2 http://quotationsbook.com/quote/76/3 K. MILLET, SEXUAL Politics 87 (1971).4 April L. Cherry, A Feminist Understandingo f Sex-Selective Abortion:"Solely a Matter of Choice, 10 WIS.WOMENS L.J. 161, 216 (1995).5 http://press-pubs.uchicago.edu/founders/documents/amendIXs1.html6 INTERNATIONAL JOURNAL OF MULTIDISCIPLINARY EDUCATIONAL RESEARCHISSN : 2277-7881 VOLUME 1, ISSUE 3, AUG 2012
  2. 2. The perusal of the directions in the form of total six orders is sufficient to reflect that the SupremeCourt has to in this matter literally legislate on how the Act should be implemented. This decisionhence constitutes a land mark in its impact. It exhibits the deep concern and the anguish felt bythe Apex Court towards the social evil of sex selection followed by elimination of foetus if foundto be female. The Supreme Court was equally concerned with the apathy on the part ofGovernment in implementation of the law which aims at preventing such a social evil. As perSupreme Court, “it was unfortunate that for implementation of the law, which was the urgentneed of the hour, NGOs had to approach the Court.”It is unfortunate that for one reason or the other, the practice of female infanticide still prevailsdespite the fact that the gentle touch of a daughter and her voice has a soothing effect on theparents. One of the reasons may be the marriage problems faced by the parents coupled with thedowry demand by the so-called educated and/or rich persons who are well placed in the society.The traditional system of female infanticide whereby the female baby was done away with afterbirth by poisoning or letting her choke on husk continues in a different form by taking advantageof advanced medical techniques. Unfortunately, developed medical science is misused to get ridof a girl child before birth. Knowing full well that it is immoral and unethical as well as it mayamount to an offence, foetus of a girl child is aborted by qualified and unqualified doctors orcompounders. This has affected overall sex ratio in various States where female infanticide isprevailing without any hindranceHemanta Rath -Vs- Union Of India (UOI) And Others AIR 2008 Orissa 71Public Interest Litigation was filed noticing series of news items in the newspapers and in theelectronic media to the effect that there have been recovery of hundreds of skeletons, skulls, bodyparts of children from different parts of the State. The petitioner asserts that recovery of suchhuge body parts has shocked the common man and from the news item, it also transpires thatthese things were found from an area which is close to various Nursing Homes and Clinics. It isalso alleged that in India, there is notorious practices of female foeticide and infanticide.Court on its own motion -Vs- State of Punjab and others7Alarmed by declining girl child sex ratio in this part of the country and to curb social menace offemale foeticide, this Court had taken cognizance of a newspaper report published in HindustanTimes, Chandigarh on November 17, 2007 under the caption “Efforts to improve sex ratio in for ahuge blow” “Sex-determination kits enter state” and had issued suo-motu notice to States ofPunjab, Haryana and Union of IndiaVinod Soni and Anr.-Vs- Union of India (UOI) 2005 CriLJ 3408,Validity of the Act was challenged on the ground that the provisions of the Act are violative ofArticle 21 of the Constitution of India. A very interesting argument was advanced in this case bythe Petitioner that the right to life guaranteed under Article 21 of the Constitution includes rightto personal liberty which in turns includes the liberty of choosing the sex of the offspring and todetermine the nature of the family.“The right to personal liberty cannot expand by any stretch of imagination,to liberty to prohibitcoming into existence of a female foetus or male foetus which shall be for the Nature to decide.To claim a right to determine the existence of such foetus or possibility of such foetus come intoexistence, is a claim of right which may never exist. Right to bring into existence a life in futurewith a choice to determine the sex of that life cannot in itself to be a right. In our opinion,therefore, the petition does not make even a prima facie case for violation of Article 21 of theConstitution of India. Hence it is dismissed”7 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 17964 of2007 date of order 31/07/2009 http://judis.nic.in
  3. 3. Girish Memorial Charitable Trust vs State Of Haryana And Others 8The decrease in the female sex ratio is alarming. The girls are to be saved if we want to save theSociety. The steps taken by both the States of Punjab & Haryana and Union Territory,Chandigarh also deserve appreciation. We hope and trust that the steps taken shall continue andmay not be a stop gap arrangement only because of pendency of this writ petition.InternationalIn the case of L.C. v. Peru, the CEDAW Committee found that the government had violated apregnant girl’s rights by prioritizing the fetus over her health by postponing an essential surgeryuntil the girl was no longer pregnant. The girl’s continued pregnancy posed a substantial risk toher physical and mental health, and the CEDAW Committee held that the denial of a therapeuticabortion and the delay in providing the surgery constituted gender-based discrimination andviolated her rights to health and freedom from discrimination.The CEDAW Committee hasfurther expressed concern that women’s rights to life and health may be violated by restrictiveabortion laws.- Supreme Court of Nepal, Lakshmi Dhikta v. Nepal writ no0757,2067(2007) “What we do know is that a fetus does not have a separate existence and it can only existwithin a mother’s womb. That is why, even if we do recognize a fetal interest, we cannot saythat it shall prevail over a mother’s interest.”- Constitutional Court of the Slovak Republic, Decision on the Constitutionality of the Act onArtificial Interruption of Pregnancy 2“The constitutional value of unborn human life can… be protected only to such extent thatthis protection [does] not cause an interference with the essence of [a] woman’s freedomandher right to privacy.”- European Court of Human Rights, Vo v. France Eur. Ct. H.R. 80 (2004) “[I]f the unborn do have a ‘right’ to ‘life,’ it is implicitly limited by the mother’s rights andinterests.”- United Kingdom, High Court of Justice, Queens Bench Division, Smeaton v. The Secretary ofState “These are topics on which men and women of different faiths, or indeed of no faith at all,may and do hold, passionately and with the utmost sincerity, starkly differing views. All ofthose views are entitled to the greatest respect but it is not for a judge to choose betweenthem. The days are past when the business of the judges was the enforcement of morals orreligious belief.”- United States Supreme Court, Roe v. Wade 410 U.S. 115, 157(1973)“We need not resolve the difficult question of when life begins. When those trained in theirrespective disciplines of medicine, philosophy and theology are unable to arrive at anyconsensus, the judiciary…is not in a position to speculate.”8 In the High Court of Punjab and Haryana, at Chandigarh Civil Writ Petition No. 11856 of 2011 Date ofDecision: 20.9.2012