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Published : May 20, 2015 | Author : drsahanwaz
Category : Law - lawyers & legal Profession | Total Views : 1665 | Rating :

  
drsahanwaz
M.B.A.,M.A. in Sociology, M.A. in Human Rights,LL.M., PhD in Law,Assistant Professor of Law, Uttaranchal University, Dehradun.
 

Right To Be Born And Indian Legislative And Judicial Framework

The purpose of this research is mostly to explore the legal framework to prevent sex selective abortion and sex selection, therefore, it is need to more through the provisions of International law and the legal framework in the domestic sphere in India, which desires the state to regulate the misuse of technology and formulas which targets girl foetus in the mother’s womb.Although the Constitution of India in the fundamental right chapter prohibits discrimination of the basis of sex gender based discrimination is a widely prevalent phenomenon in our society. Discrimination on the basis of sex occurs in various forms historically. A new addition to it is the misuse of technology for determination and formula for sex selection. What is serious in the new form of is crimination is the total elimination of female foetus, thereby not even allowing girl foetus to blossom fully and to take birth. Thus the right of a person to be born free in denied through the use of pre natal sex determination technique and the more recent development of different formula to select the sex of the foetus at the time of conception. The sex determination techniques determine the sex of the foetus. The moment the foetus is pronounced as female, attempts are made for termination of pregnancy bringing to an abrupt end of the growth of an unborn child. On the other hand, sex selection formula halts the conception of girl foetus itself. Both sex selective abortion and sex selection are the worst form of discrimination against women and gross violation of human right. If it continues to be practiced the nature, as there will be a wide disequilibrium in the male and female ratio.

Every child has a right to be born free. Contrary to this right, the right to an unfettered birth is denied. It is denied through the use of prenatal sex determination techniques and the more recent development of different formula to select the sex of foetus. The sex determination technique determines the sex of the foetus. The moment the foetus is pronounced as female, this prompts the termination of pregnancy bringing an abrupt end to the growth of an unborn child. Furthermore sex selection formula halts the conception itself.

The purpose of this research is mostly to explore the legal framework to prevent sex selective abortion and sex selection, therefore, it is need to more through the provisions of International law and the legal framework in the domestic sphere in India, which desires the state to regulate the misuse of technology and formulas which targets girl foetus in the mother’s womb. There are so many reasons to believe that any action pertaining to elimination of female foetus is an attack on the rights of the child as a whole as the eliminated foetus does not have a chance to unfettered birth followed by a life to enjoy the rights endowed on children. Nevertheless, it is not only a child right to be born free but it is a human right, which is under threat.

Thus the right of a person to be born free in denied through the use of pre natal sex determination technique and the more recent development of different formula to select the sex of the foetus at the time of conception. The sex determination techniques determine the sex of the foetus. The moment the foetus is pronounced as female, attempts are made for termination of pregnancy bringing to an abrupt end of the growth of an unborn child.

OBJECTIVES OF THE STUDY:
To know what is the meaning of right to be born free
To know the effects of this concept
To know about Gender Discrimination.
To identified the Constitutional and International and National Legal framework for Right to be born free.
To find out the intervention of judicial processfor the protect and promotion of right to be born free.

Position under International Provisions:
Article-1 of the universal Declaration of Human rights (UDHR), which provides that every human being is born free. The practice of sex selection and sex selective abortion goes against the fundamental human right recognized by UDHR. This is considered as the first generation of Human Rights.

Article – 6 of the United Nations Convention on the Rights of the child (CRC), which India ratified as state policy to the convention in the year 1992 provides that the state shall recognize ‘Every Child has the Inherent Right to life, the CRS casts a duty upon the state to ensure that no child’s discriminated against on the basis of sex.

Article – 24 of the Convention on Rights of the Child,1989, urges stages to ensure proper pre-natal care for mothers in the interests of the child even before it is born.

Position under Indian Constitutional Provisions:
The Indian Constitution has the two specific provisions, which have direct bearing on the issue of sex selection and determination.

Firstly the constitution of India provides that every person shall have the right to life (Article-21). Thus the constitution cast the duty upon the state to take all the measures possible to protect the life of the unborn child.

Article-21 Protection of life or personal liberty no person shall be deprived of his life of personal liberty except according to procedure established by law.

Secondly, the constitutional provision of non-discrimination of grounds of sex in Article 15. The use of the technique or the formula for determination of foetus leading to foeticide is thus against the constitutional mandate.

Article -15 prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth. Besides it is a fundamental duty under Article 51(A) which provides that practices derogatory to the dignity of women must be renounced.

Position under the Indian Legal Framework:
Indian Penal Code:
A reference can also be made here about the provisions in the Indian penal code section 312 to 316 and 318 can be important so far as the conception and birth of a child is concurred. The following offences come under the above mentioned section of the IPC.

Section – 312:Causing miscarriage if the woman the quick with child (having conceived but it can notes the peculiar perception felt by a pregnant woman when the foetus in the womb beings to move which generally occurs after fourth or fifth months of the pregnancy) shall be punished with imprisonment for a term which may extend to three years or with fine or with both or imprisonment for a term which may extend to seven years and fine.
Section – 313: Causing miscarriage with our women’s consent , shall be punished with imprisonment for life or with imprisonment of a term which may extend to ten years and fine.
Section - 314: Death caused by act done with intent to cause miscarriage. If act done without women’s consent, shall be with imprisonment for a term which may extend to ten years and fine.
Section – 315: Act done with intent to prevent a child being born alive or to cause it die after its birth, shall be punished with imprisonment for a term which may extend to ten years or with fine or with both.
Section – 316: Causing death of a quick unborn child by an act amounting to culpable homicide, shall be punished with imprisonment for 10 years and fine.
Section – 318: Concealment of Birth by secret disposal of dead body shall be punished with imprisonment up to 2 years or with fine or both.

Special Legal Provisions
Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of sex selection Techniques) (PCPNDT) Act, 1994

Important Features of the PCPNDT Act:

Pre-conception sex selection: Recently developed techniques of sex at the time of conception like Ericsson method (X and Y chromosome separation) and pre-implementational genetic diagnosis (PGD) are also brought under the ambit of the law.

Compulsory Registration: The act mandates compulsory registration of all diagnostic laboratories. The manufactures of ultrasound equipment would now be required to sell their products only to those clinics that are registered.

Maintenance of Records: All Genetic Counseling Centers, Genetic Laboratories, Genetic Clinics and Ultrasound clinics, irrespective of whatever they are involved as regards diagnosis for gynecological or other purposes, would now have to maintain records of all the tests conducted by them.

Maintenance of Record of the reasons for testing: The prenatal diagnostic techniques can be used in the following conditions:

(a) Age of the pregnant woman is above 35 years,
(b) The pregnant woman has undergone two or more spontaneous, abortions of foetal loss,
(c) The pregnant woman had been exposed to potentially teratogenic agents such as drugs, radiation, infection or chemicals.
(d) The pregnant woman has a family history of mental retardation or physical deformities such as spasticity or any other genetic disease,
(e) The central supervisory Board may specify any other condition as required.

No encouragement to do pre-natal diagnostic test: No person including a relative or husband of the pregnant woman shall seek or encourage the conduct of any pre-natal diagnostic techniques on her except in certain conditions.
State Level Supervisory Body (SLSB): The law provides for the setting up of state level supervisory bodies to monitor the implementation of the act. The board shall meet at least once in six month.
Punishment: Any violation, including unlicensed labs, of the act leads to seizure of equipments. The fine for those who indulge in sex selection procedure is up to Rs.1,00,000/- with additional provisions for the suspension an cancellation of the registration of those as a medical practitioner by the concerned medical council any other registering authority.

Appropriate Authority and Advisory Committee under PCPNDT Act:

Section 17(1) mandates that the central govt. shall appoint, by notification in the official Gazette, one or more appropriate authorities for each of the union territories for the purposes of this act.
Section 17 (2) of the act lays down that the state govt. shall appoint by notification in the official Gazette, one or more appropriate authorities for the whole or part of the state for the purposes of this act having regard to the intensity of the problem of pre-natal sex determination leading to female foeticide.

Section 17 (3) of the act says down that the officers appointed as appropriate authorities under sub-section (1) and (2) shall be:-
(a) When appointed for the whole of the state or the union territory, consisting of the following three members-
An officer of or above the rank of the joint director of health and family welfare chairperson,
An eminent women representing women’s organization, and
An officer of law department of the state or the union territory concerned.
(b) When appointed for any part of the state of the union territory, of such other rank as the state govt. or the central govt. as the case may be, may deem fit.

Section 17 (5) says about constitution of the advisory committee. The central govt. or the state govt. as the case may be, shall constitute an advisory committee for each appropriate authority to aid and advise the appropriate authority in the discharge of its functions and shall appoint one of the members of the advisory committee to be its chairman.

The advisory committee shall consists of [section 17 (6)]:

(a) Three medical experts from amongst gynecologists, obstetricians, pediatricians and medical geneticists;
(b) One legal expert,
(c) One officer to represent the department dealing with information and publicity of the state govt. or the union territory, as the case may be;
(d) Three eminent social workers of whom not less than one shall be from amongst representatives of women’s organization.

Offences under PCPNDT Act:

· Cognizable
· Non-bailable
· Non-compoundable

Cognizable of offense [section 28(1)]:

Cognizable offences are accepted on a written complaint made by:-
Appropriate authority concerned or any officer authorized by the central or state govt.
A person who has given notice of not less that 15 days to the appropriate authority in a prescribed manner.
The term person includes a social organization.

Penalties under PCPNDT Act:

Provision Nature Punishment
Section:-22- Prohibition of Advertisement relating to pre­conception and pre-natal determination of sex Advertisement regarding the facilities of pre-natal determination  of sex beforeconception Imprisonment for a term extended up to three years and with a fine up to Rs. 10,000.00
Section :-23-Contravention of this Act or Rule
Violation of this Rule and Act by a person who owns or employed in a Genetic Counselling    Centre, Genetic Laboratory or Genetic Clinic
Imprisonment for a term extended up to three years and with a fine up to Rs. 10,000.00 for First Offences.

Imprisonment for a term extended up to five years with a fine up to Rs. 50,000.00 for subsequent offences.

In   case   of  registered   medical practitioner  suspension   of  the registration from the register of State Medical Council for a period of 5 years for the first offences and permanently for the subsequent offences.
 
Section:-23 (3) Seeking Aid of any Genetic Counselling     Centre, Genetic      Laboratory, Genetic      Clinic      or Ultrasound   Clinic   or Imaging Clinic or of any medical practitioner or any other person  for sex selection or for conducting pre-natal    diagnostic techniques Imprisonment for a term extended up to three years and with a fine up to Rs. 50,000.00 for first offences.
Imprisonment for a term extended up to five years and with a fine up to Rs. 1,00,000.00
Section 24: - Abetment of offences under sub­section (3) of Section 23 Compelling a pregnant women to undergo pre­natal         diagnostics technique Imprisonment for a term extended up to three years and with a fine up to Rs. 50,000.00          for first offences. Imprisonment for a term extended up to five years and with a fine up to Rs. 1,00,000.00
Provision Nature Punishment
Section 25: - Penalty for Contravention of the provisions of the Act or rules Not Defined Imprisonment for a term up to three months or with fine up to Rs. 1,000.00 or both.

In case of continuing contravention with an additional fine which may extend to Rs. 5,000.00 for every day during which such contravention continues after conviction for the first such contravention.
Section 26: - Offences by Companies Contravention of the Act by every person who is in charge       and       was responsible    for    the business of the Company Not Specified

Functions of the statutory bodies under PCPNDT Act:
Central advisory committee section 16

The central advisory committee has the following functions:
To advise the central govt. on policy matters relating to use of pre-natal diagnostic techniques, sex selection techniques and against their misuse;
To review and monitor implementation of the act and the rules made there under and recommend to the central govt. changes in the said act and rules.
To crate public awareness against the practice of pre-conception sex selection and pre-natal determination of sex pf foetus leading to female foeticide;
To lay down code of conduct to be observed by persons working at genetic counseling centers, genetic laboratories and effective implementation;
Any other function as may be prescribed under the act.

Appropriate Authority: (Section 17-4)

The appropriate authority has following functions:
To grant, suspend or cancel registration of a genetic counseling centre, genetic laboratory or genetic clinic;
To enforce standards prescribed for the genetic counseling centre, genetic laboratory and genetic clinic;
To investigate complaints of breach of the provisions of this act or the rules made there under and take immediate action; and
To seek and consider the advice of the advisory committee, constituted under sub-section (5) on application for registration and on complaints for suspension or cancellation or registration;
To take appropriate legal action against the use of any sex selection technique by any person at any place, suomotu or brought to its notice and also to initiate independent investigation or sex;
To crate public awareness against the practice of sex selection or pre-natal determination of sex;
To supervise the implementation of the provisions of the act and rules;
To recommend to the Board and State Boards modifications required in the rules in accordance with changes in technology or social conditions.

Advisory Committee (Section 17-5)

The role of the advisory committee is to aid and advise the appropriate authority in the discharge of its functions.

Some Do’s in conducting pre-natal diagnostic techniques under PCPNDT Act.

Pre-natal diagnostic (PND) techniques shall be conducted in the following situations only, [Section -4 (2)]

· Chromosomal abnoicmalities,
· Genetic metabolic diseases,
· Haemoglobinopathies,
· Sex linked genetic diseases,
· Congenital anomalies,
· Any other abnormalities or diseases as may be specified by the centrals supervisory board.

 

PND techniques shall be conducted only if: [Section -4 (3)]

· The age of the pregnant women is above 35 years
· The pregnant women has been under gone two or more spontaneous abortions or foetal loss.
· The pregnant woman had been exposed to potentially teratogenic agents such as drugs, radiation, infection or chemicals.
· The pregnant woman or her spouse has a family history of mental retardation or physical deformities such as spasticity or any other genetic diseases.

Any other condition as any specified by the board.

The person conducting PND procedures shall:
· Explain all know side and after effects of such procedures to the pregnant woman concerned.
· Obtain the written consent of the concerned pregnant woman to undergo such procedures in the language, which she understand;
· Give a copy of the written consent obtained to the pregnant woman.

Judicial Framework In Relation To Protect And Promote Right To Be Born Free:

In “Meeru Bhatia Prasad Vs. State” (2002) Cr LJ 1677(Del.), the High Court of Delhi observed that a woman quick with a child simply means a particular stage of pregnancy at which quickening takes place. It is a perception of the woman of the movement of foetus. Good faith by itself is not enough it has to be good faith for the purpose of saving the life of the mother our the child and not otherwise. In this case the doctor was found to be negligent and careless in injecting needless twice for performing abdominocenttests. The result was that the patient had to undergo forced abortion because septic developed. There was consent only for one insertion and that was not at all applicable to second insertion.

In “Akhil Kumar Vs. State of M.P”, (1992) Cr LJ 2029 (M.P.) in this case a woman had pregnancy of 24 weeks out of illicit relations and a doctor administered an injection for determination of the pregnancy but the woman died the next day without miscarriage. It was held that the act of the doctor amounted to voluntarily causing miscarriage, within the meaning of section 312 read with section 511, as the doctor was presumed to know the possible effects of the medicine.

In “Tulsi Devi Vs. State of U.P” (1996) Cr. LJ 940 (ALL.), it was held that the accused women kicked a pregnant women in her abdomen resulting in miscarriage, her conviction under S.313 was sustained as the act should have been done without the consent of the woman. Under this section the person procuring the abortion is alone punished.

In “Jacob George Vs. State of Kerala” (1994) 3 SCC 430, it was held that a homeopath operated a pregnant woman to cause abortion but she died a few hours after operation because her uterus got perforated. The apex court reduced the sentence to one year already undergo but enhanced the fine of Rs.5,000 to one Lakh rupees to be deposited in the name of the minor son of the deceased.

In “SurendraChawanVs. State of M.P” AIR (2000) SC 1436, it was held that the accused had illicit relations with the deceased woman. He took her to a doctor for the purpose of aborting her pregnancy. But after operation she died. Because, the doctor was not qualified for the purposenor his clinic was approved by the Govt. under the Medical Termination of Pregnancy Act and was also not having the basic facilities for abortion.

In “TelengaMunda Vs. State of Bihar” (2001) Cr LJ 3094 (Pat.), it was held that as pregnant girl was taken to a doctor who operated crudely causing rupture of big ovary resulting in death, abortion stick was also found in her internal part, the doctor did not inform police, direct nexus between his act and death, conviction of the doctor was proper.

CONCLUSION AND SUGGESTIONS:
Sex selective abortion and sex selection at the time of conception are both moral turpitude and crime against humanity too. This needs to be resisted at all cost. Gender selection and determination need to be condemned, because they transgress the law and violate the fundamental human rights of women as a class, to be born and to embrace life. In fact it is a fundamental duty of every citizen of our country to up hold the dignity of women. Elimination of pre-birth of females is against the life and dignity of women. Never the less it is also a gross discriminatory practice on the basis of sex.

Practically and conceptually, sex selection cannot be treated as a family planning tool nor can the matter be left as being personal. Discrimination and subjugation on the basis of gender is a real social problem. There can be no technical solution to it.

Legal solution, however, is possible and in dispensable. But equally significant is the consciousness rising among medical experts and there is a need of self-restraint on their part.

Through PNDT Act was implemented in 1994, the techno doctors and parents desirous of begetting only sons had subverted the act since there is a strong socio-cultural background of son preference and daughter aversion. The approaches that can be adopted to half the process of declining sex ration resulting.

Law in India for providing Protection to foetus:

1. Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of sex selection) Act 2002.
This act provides regulation of the use of pre-natal diagnostic techniques for the purpose of detecting genetic or sex linked disorders and for the prevention of the misuse of such techniques for the purpose of pre-natal sex determination leading to female foeticide.

2. The Medical Termination of Pregnancy act 1971, this act provides for the termination of certain pregnancies by registered medical practitioners.

3. India Penal Code
There are provisions (section -312 to 318) in the IPC to punish the person who commits the offence of foeticide or infanticide.

The easier access and availability of genetic centre having ultra-modern technology for determining the sex in the mother’s womb have prompted the parents to opt the method for identification of the sex and if female foetus is found they go for abortion without any hesitation and as a result female foeticide has been rampant in urban areas and of late, it is also getting into rural areas. This practice is mostly preferred in regard to second and third pregnancy if the first one is a girl. The use of sex selection abortion technology has been a predominant factor violation of girl child’s right to survival.

Suggestions:
Ø The Legislations should be stringent in relation to feticide.
Ø The government should take necessary action in regard to Sex determination centres.
Ø The Government agencies and Non government agencies should promote legal awareness programmes within the communities.
Ø Seminars and workshops are to be conducted in the universities and schools and colleges.

BIBLIOGRAPHY
1. Basu, D.D 1999, 12th Edition- The shorter constitution of India, Wadhwa and Company Law Publishers, New Delhi.
2. Awasthi S.K, Kataria R.P 2002 Millennium Edition Law Relating to Protection of Human Rights, Orient Publishing Company, Allhabad.
3. Bajpai, Asha, 2003, 1st Edition- Child Rights in India, Oxford University Press, New Delhi.
4. Ratanlal, Dherajlal, Indian Penal code, 30th Edition, Wadhwa,2006
5. The Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of sex selection) Act, 1994
6. A Report of National Constitution on Medico Legal Issues relating to female foeticide, the centre for child and the law, National law schools of India University, Bhubaneswar
7. Census of India 2001, Director of Census operation, Orissa, Bhubaneswar
8. Chandru, K, Ramaseshan, geetha, Thanikachalam, Chandra, edition 1998, Child and Law in India, Indian council for child welfare, Chennai.
9. A report on sex selection and Pre-Birth elimination of females with the corporate Industry leaders of Gujarat, centre for health education, training and Nutrition awareness, Ahmedabad.
10. A workshop report on female foeticide and declining child sex ration, plan India, Jaipur.

***********************
By Dr. Shaikh Sahanwaz Islam - Assiatant Professor of Law, Uttaranchal University, Dehradun. Author may be reached at drsahanwaz@legalserviceindia.com

 




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