Female Foeticide In India

Year Sex-Ratio

1901 972

1911 964

1921 955

1931 950

1941 945

1951 946

1961 941

1971 930

1981 934

1991 929

2001 933

Thus as per these statistics reveal, the overall sex ratio in India is 933 females for every 1000 males, showing a marginal increase of 4 points from the 1991 census of 929. However, this is a very sorry state indeed and we are doing much worse than over a hundred years ago when the sex ratio was 972 in 1901, 946 in 1951 till the 933 today.

The Trend of sex ratios in the age group of 0-6 years all over India

The above table clarifies that more and more baby girls have either been aborted or killed as infants since 1961 and that this trend continues strong even today.

The intensity of sex ratio imbalance in the 0-6 age group in some states of India is indeed horrifying. In Punjab the sex ratio is (793 F: 1000 M), in Haryana it is (820 F: 1000 M), in Himachal Pradesh it is (897 F: 1000 M), in Gujarat it is (878 F: 1000 M). Recent government figures show that in South Delhi, the sex ratio is 762 females per 1000 males, while in Mumbai’s Borivalli it’s 728 females per 1000 males. In Jaipur itself, an average of 3500 instances of female foeticide is supposed to be carried per year. These figures undoubtedly point out that the country, is witnessing today the systematic extermination of the female child on a large scale. All most the whole of the country is under the grip of this menace. The following table estimates the intensity of Female Foeticide in the various states of India:

States Showing High Foeticide Percentage

From the above table we find that ironically the developed and the richest states of India are the toppers in the list where female foeticide is extensive. According to UNICEF study done over 3 years (1994-1996), there are only five states in India where no case of foeticide or infanticide have been reported which are Sikkim, Nagaland, Meghalaya, Mizoram and Jammu & Kashmir. An improvement in the child sex ratio whatsoever has only been marked in one state, Kerala, and two Union Territories, Lakshwadeep and Pondicherry.

The reports published by various agencies also throw considerable light on this grim reality. The UN reports reveal that between 35 to 40 million girls missing from the Indian population.

According to a study conducted recently in India, the first systematic study on female foeticide by an Indo-Canadian team, 10 million female foetuses have been aborted in India, What all the more shocking is according to its report every year, about 50,000 unborn girls-one in every 25-are aborted in India .

The UNPFA report on “India Towards Population and Development Goals” published in 1997 also expressed its concern over the issue. It is estimated that 48 million women were ‘missing’ from India’s population. The report states “If the sex ratio of 1036 females per 1000 males observed in some states of Kerala in 1991 had prevailed in the whole country, the number of would be 455 million instead of the 407 million (in the 1991 census). Thus, there is a case of between 32 to 48 million missing females in the Indian society as of 1991 that needs to be explained.” It further stated that, “The 1991 census is only indicative of this disturbing trend when elsewhere in the world women outnumber men by 3 to 5 percent. There are 95 to 97 males to 100 females in Europe; the ratio is even less, 88 males to 100 females, in Russia, mainly due to causalities of World War 2”.

According to the UNICEF report, 40 to 50 million girls have gone missing from Indian population since 1901 as a result of systematic gender discrimination in India.

Thus in consideration of all these facts it is quite evident that Female Foeticide has taken a disastrous shape in India. It is the distressing reality of Shining India that the mass depletion of the fairer sex is being carried on boldly without any hesitation, without any fear.

Laws in India to Check Female Foeticide :

In India in order to stop the indiscriminate abortion of female fetuses several laws have been enacted. The essential provisions relating to the prevention of Female Foeticide are laid down in:

1. Indian Penal Code 1860
2. The Medical Termination of Pregnancy Act,1971
3. The Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994

a) Indian Penal Code 1860:Under the IPC adequate provisions have been made for the protection of mother and unborn child. Under Section 312, 313and 314, the IPC provides to save the women from miscarriage. Miscarriage means the expulsion of the child or foetus from the mother’s womb at any period of pregnancy before the term of gestation is completed. Though the term “miscarriage” is not defined in the I.P.C in its popular sense, it is synonymous with abortion, and consists in the explosion of the embryo or foetus, i.e. the immature product of conception. The stage at which pregnancy has advanced and the form which the ovum or embryo may have assumed are immaterial.Any act intended, not in good faith to cause miscarriage is punishable under IPC. The punishment for this offence is further enhanced if the woman is ‘quick with child’. The term ‘Quickening’ refers to the peculiar sensations experienced by a woman about the fourth or fifth month of pregnancy. The symptoms are popularly ascribed to the first perception of the movement of the foetus.

According to Section 312 if any person causes a miscarriage of woman, he shall be punished with the imprisonment up to three years or fine or with both, and if the woman be quick with child, he shall be punished with imprisonment up to seven years and fine also. Under this section a woman who causes her miscarriage or gives consent to miscarry is also liable for punishment.

Section 313 provides the punishment for life or ten years and fine, who causes the miscarriages of a woman without her consent. In the case of Tulsi Devi v. State of U.P, the accused women kicked a pregnant woman in her abdomen resulting in miscarriage. She was held to be convicted under Section 313.

Section 314further provides that if the act directed to cause miscarriage results in death of the pregnant woman, the offender is punishable with imprisonment of ten years as well as with fine.

However the IPC permits abortion for saving the life of the pregnant women. Section 312 allows the termination of pregnancy in good faith for saving the life of the pregnant woman. The term good faith, however, is not a constant term but it is varied from case to case. The General Clauses Act 1897 defines good faith as, “A thing shall be deemed to be done in good faith where it is, in fact done honestly.” IPC defines good faith as “Nothing is said to be done or believed in good faith which is done or believed without due care and attention”.

In addition to these, Section 315 and 316 provides for protection against injuries to the unborn child. Section 315 lays down that any person doing an act without good faith with the intention of preventing a child to be born or to cause it die after birth is punishable with imprisonment of ten tears or fine or both. Section 316 provides if a person causes the death of a quick unborn child by an act amounting to culpable homicide he shall be punishable with imprisonment for ten years as well as be fined.

Like the Indian law, protection to the unborn child has also been recognized and guaranteed in other countries too. Such as in the United States thirty-five states currently recognize the “unborn child” or fetus as a homicide victim. 25 of those states apply this principle throughout the period of pre-natal development while 10 establish protection at some later stage, which varies from state to state. For example, the Supreme Court of California treats the killing of a fetus as homicide, but does not treat the killing of an embryo (prior to approximately eight weeks) as homicide. The Unborn Victims of Violence Act enacted in 2004 recognizes the ‘child in utero’ as “a member of the species homo sapiens, at any stage of development, who is carried in the womb.” This ‘child in utero’ is recognized as a legal victim if he or she is injured or killed during the commission of any of 68 existing federal crimes of violence and offered legal remedy as per the state laws. However, the federal and state courts have consistently held that these laws do not apply to apply to legal induced abortions and do not contradict the U.S. Supreme Court’s rulings on abortion.But unlawful abortion however may be considered “foeticide”, even if the pregnant woman consents to the abortion..Similarly the English law also gives protection to the unborn child. It recognizes ‘Child Destruction’ as a crime. ‘Child destruction’ refers to the crime of killing a child “capable of being born alive”, before it has “a separate existence”. The Crimes Act 1958 defined “capable of being born alive” as 28 weeks’ gestation, later reduced to 24 weeks.

b)The Medical Termination Of Pregnancy Act, 1971: The MTP Act is another attempt to prevent high rate of female foeticide in India. This Act aims in preventing large number of unsafe abortions. The Act clearly states that an abortion can be termed legal only when-

– Termination is done by a medical practitioner approved by the Act

– Termination is done at a place approved under the Act

– Termination is done for conditions and within the gestation prescribed by the Act

– Other requirements of the rules & regulations are complied with.

It permits termination of pregnancy only when Continuation of pregnancy constitutes risk to the life or grave injury to the physical or mental health of woman or there is a substantial risk of physical or mental abnormalities in the fetus as to render it seriously handicapped or if pregnancy caused by rape (presumed grave injury to mental health) or due to contraceptive failure in married couple (presumed grave injury to mental health).However termination of pregnancy is possible –

– Upto 20 weeks of gestation period only

– With the consent of the woman. If the woman is below 18 years or is mentally ill, then with consent of a guardian

– With the opinion of a registered medical practitioner, formed in good faith, under certain circumstances

– With the opinion of two RMPs required for termination of pregnancy between 12 and 20 weeks.

Also such abortion is to be conducted either at a hospital established or maintained by Government or at a place approved for the purpose of this Act by a District-level Committee constituted by the government with the CMHO as Chairperson.

Thus this Act on one hand positively aims to improve the maternal health scenario by upholding the validity of legally induced abortions and negatively, on the other hand, seeks to reduce illegal abortions. Also it is to be noted that such strict principles laid down by the Act for the regulation of abortion is a bold attempt by the Indian Legislature to check Female Foeticide. The Act seeks to put an end to the menace of illegal abortions carried out primarily for the elimination of female fetuses.

c) The Pre-Natal Diagnostic Techniques (Regulations and Prevention of

Misuse) Act 1994:The PNDT Act is the outcome of the realization of the Parliament that a central piece of legislation had become mandatory for stopping the abuse of pre natal diagnostic techniques. When it was quite evident from the mushroom growth of clinics all over that the pre-natal diagnostic techniques were not restricted for the purpose of detection of genetic disorders or chromosomal abnormalities or congenital abnormalities or sex-linked diseases only but was actually leading to female foeticide, for the first time in India, in 1986, a social action group in Mumbai namely the Forum Against Sex Determination and Sex Pre-selection (FASDSP), initiated a campaign. On its pressure the Maharashtra government enacted the Maharashtra Regulation of Pre-Natal Diagnostic Techniques Act 1988, which was the first anti sex determination drive in the country. This was followed by a similar Act being introduced in Punjab in May 1994.

However both these Acts were repealed by the enactment of a central legislation, i.e. the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act 1994, which came into effect from 01.01.1996, banning sex determination tests all over the country. This Act was renamed in 2002 as the Pre- Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (PCPNDT Act) which came to effect from 14.02.2003.

The PCPNDT Act chiefly provides for :

1. Prohibition of sex selection, before and after conception.
2. Regulation of prenatal diagnostic techniques (e.g. aminocentesis and ultrasonography) for detection of genetic abnormalities, by restricting their use to registered institutions. The Act allows the use of these techniques only at a registered institutions .The Act allows the use of these techniques only at a registered place for a specified purpose and by a qualified person, registered for this purpose.
3. Prevention of misuse of such techniques for sex selection before or after conception.
4. Prohibition of advertisement of any technique for sex selection as well as sex determination.
5. Prohibition on sale of ultrasound machines to persons not registered under this Act.
6. Punishment for violations of the Act.

This Act requires that all diagnostic centres must be registered with the authorities. They are required to maintain detailed records of all pregnant women undergoing scans there. These records must include the referring doctor, medical and other details of the woman, reason for doing the scan, and signatures of the doctors. These records must be submitted to the authorities periodically. For implementing the Act, “appropriate authorities” are appointed at the state level and work with the director of health services, a member of a women’s organization and an officer of the law. At the district level, the appropriate authority is the medical officer or civil surgeon. Advisory committees consisting of doctors, social workers and people with legal training assist appropriate authorities. Supervisory boards at the state and central levels look at the implementation of the Act. The appropriate authority may cancel the diagnostic centre’s registration, make independent investigations, take complaints to court, and take appropriate legal action. It may demand documentation, search premises, and seal and seize material. Courts may respond only to complaints from the appropriate authority. Under the Act the following people can be charged-everyone running the diagnostic unit for sex selection, mediators who refer pregnant women to the test, and relatives of the pregnant woman. The pregnant woman is considered innocent under the Act, “unless proved guilty”. So far as penalties under the Act are concerned, it consists of imprisonment for up to three years and a fine of up to Rs. 10,000. This is increased to five years and Rs. 100,000 for subsequent offences. Doctors charged with the offence will be reported to the State Medical Council, which can take the further necessary action including suspension.

These are the three chief legislative measures initiated in India for combating the evil of Female Foeticide.

Judicial Response to Female Foeticide in India:

The Indian Judiciary has from time to time come up with ingenious ways to provide protection to the fairer sex and this essentially includes the group of unborn girls too. The Supreme Court in the case of “Centre for Enquiry into Health and Allied Themes (CEHAT) and others v.Union of India” which was filed under section 32 of the Constitution of India under PIL issued directions to Central Supervisory Board, all State Governments and Union Territories for proper and effective implementation of the PCPNDT Act – which mandates that sex selection by any person, by any means, before or after conception, is prohibited. Since 2001, the judiciary has been closely monitoring the implementation of its various orders passed regarding the ban on the use of ultrasound scanners for conducting such tests. Subsequently, it had sought status reports from all states and Union Territories. The Supreme Court also directed 9 companies to supply the information of the machines sold to various clinics in the last 5 years.. Addresses received from the manufacturers were also sent to concerned states and to launch prosecution against those bodies using ultrasound machines that had filed to get themselves registered under the Act. The court directed that the ultrasound machines/scanners be sealed and seized if they were being used without registration. The Supreme Court also asked three associations’ viz., The Indian Medical Association [IMA], Indian Radiologist Association [IRA], and the Federation of Obstetricians and Gynecologists Societies of India [FOGSI] to furnish details of members using these machines. It is to be noted that since the Supreme Court had issued such directives, 99 cases were registered and in 232 cases ultrasound machines, other equipment and records were seized Today there is an estimated 25000 ultrasound machines in the country, of these 15000 have been registered, owing to the efforts of the Judiciary. The Supreme Court in the case of Mr. Vijay Sharma and Mrs. Kirti Sharma vs. Union of India the Supreme Court has recently quoted that “ foeticide of girl child is a sin; such tendency offends dignity of women. It undermines their importance. It violates woman’s right to life. It violatesArticle39(e) of theConstitutionwhich states the principle of state policy that the health and strength of women is not to be abused. It ignores Article51A (e) of theConstitutionwhich states that it shall be the duty of every citizen of India to renounce practices derogatory to the dignity of women. The architects of the MTPA, 1971, have not taken into consideration the fundamental rights of the foetus to be born. It is submitted that ‘life’ exists in the foetus while in the womb of the mother and in this context Article 21 of the constitution of India is applicable to unborn person as well.”

Current Scenario of the extent of Female Foeticide in India subsequent to the Legislative initiatives and Judicial attempts:

It is quite unfortunate that in India despite enactment of effective laws there has been a little change in the psychology and behavior in the people who still have a damn care attitude in causing the death of that most vulnerable being in India — the female foetus. The PCPNDT Act has not been successful to curb out this menace completely but has somewhere or the other contributed to the mushroom growth of private clinics all over the country where people desperately visit for conducting sex selective abortions. Another shameful picture which has come out is that of the doctor community, more often labeled as Gods in our country, are seen to commit a blatant violation of law as well as medical ethics. The zeal with which Female F