The Voluntary Health Association of Punjab (“Petitioner”) filed a writ petition before the Supreme Court of India to examine the ways in which the Indian state governments have addressed the problem of sex-selective abortion in India. The Court examined the states’ actions to address the issue and implement the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition on Sex-Selection) Act, 1994 (“Act”). It also examined the various barriers that must be considered when states raise awareness of the legal status of sex-selective abortion.
The decision, written by Justice K.S. Radhakrishnan, recognized that Parliament has taken steps to reduce sex-selective abortion by enacting a series of legislative measures, including the Preconception and Prenatal Diagnostic Techniques (Prohibition on Sex Selection) Act, 1994 (“Act”). However, the Court determined that states failed to effectively implement or enforce the Act. For example, the Court noted that although ultra-sonography machines were occasionally seized if they were being used for sex-selective abortions, they were later returned to their owners who could presumably resume their illegal activities. The Court also determined that fertility and reproductive health clinics often were not aware of several amendments to the Act. The Court found the functioning of the monitoring and supervisory bodies constituted under the Act to be unsatisfactory.
While recognizing that Parliament attempted to improve the legislation through Order 8.1.2013, which required states to self-report on the measures they were implementing to enforce the legislation, the Court noted that the statistics revealed that these measures were also ineffective. The records also indicated that enforcement of the legislation was a slow and drawn out process. The Court recognized that merely increasing awareness of the legal requirements does not provide successful implementation of the Act, and noted the importance of highlighting the effect that sex-selective abortion would have on the next generation to ensure institutions comply with legislation to achieve its prohibition.
The Court issued multiple orders, including having policymakers gather information and report on violations of the Act, ensure record keeping, map out unregistered clinics to ensure they did not purchase ultra-sonography machines, seize illegally sold ultra-sonography machines, and hold workshops to inform communities about the Act’s obligations.
Justice K.S. Radhakrishnan issued several directions to the states. Particularly, he directed the supervisory bodies constituted under the Act to meet at least once in six months to supervise and oversee the effective implementation of the Act. He directed the states to take steps to educate the people of the necessity of implementing the provisions of the Act by conducting workshops as well as awareness camps. He further directed the setting up of special cells by states to monitor the progress of various cases pending in the Courts under the Act and take steps for their early disposal.
Justice Dipak Misra, concurring
Justice Dipak Misra referenced several cases in support of the Court’s decision and to argue that the Act needs to be implemented to support the right to equality for women in India. Justice Dipak Misra argued 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.” He further determined that the states failed to raise awareness of the issue and consequently the general public often did not perceive the gravity of the crime. In addition, he argued 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.