Pre-Conception And Pre-Natal Diagnostic Techniques Act, 1994
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This Blog is written by Sidhida Varma S. from Government Law College, Thiruvananthapuram. Edited by Swati Pragyan.
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INTRODUCTION
The Pre-Conception and Pre-Natal Diagnostic Techniques Act was enacted with a view to curb female foeticides. Female foeticides lead to a decline in the sex ratio and to combat the same is the main objective of this Act. In India, a female child is considered a burden. This unruly and savage mentality among us creates a notion of glorification of having a male child and hence a female child is mistreated. The age-old discrimination dates back to the traditional joint families where the male child is considered as more providing and supportive. The social stigma and the patriarchal order made the dissent towards having a female child.
The Act prohibits sex selection, before or after conception, and for the regulation of pre-natal diagnostic techniques which are used for detecting abnormalities or metabolic disorders or chromosomal abnormalities or certain congenital malformations, or sex-linked disorders. And the misuse of the same for sex determination leading to female foeticide.
HISTORY
With the onset of widespread use of ultrasound techniques in India, during the early 90s, the families had a tendency to produce children until a male child was born. This led to an increase in population leading to population explosion and social discrimination against women. Thus, a nationwide decline in the sex ratio was seen from 1990 to early 2000.
SIGNIFICANCE
The PC-PNDT Act was enacted on 20 September 1994. This Act is a penal statute that punishes the errant with regards to non- compliance with it of any sought. The salient features of the Act include:
1. The Act prevents the conduction of pre-natal diagnostic techniques in any registered units. On the contrary to which if a person does it, it shall be treated as an offense. Therefore, registration is a mandatory element as per this Act.
2. The techniques include:
- Ultrasonography
- Taking or removing samples of amniotic fluid, blood, etc
- Fetoscopy
- Taking any fluid or blood of a man or a woman before or after conception.
3. The Act prohibits using the above-mentioned techniques in the diagnosis or detecting of any:
- Genetic disorders
- Chromosomal abnormalities
- Metabolic disorders
- Congenital anomalies
- Sex-linked disorders, etc.
4. The Act prohibits the above-mentioned techniques and tests to be conducted in:
Any hospital
- Vehicle
- Institutions
- Centers
- Nursing home
- Or any other place.
5. The Act also considers it essential to increase public awareness with the use of boards in public places that depicts the same as an offense.
6. The Act further explains that any person advertising the sex determination in the form of notice, circulars, etc will be prosecuted, and it prescribes the punishment, that is, imprisonment up to 3 years and fine.
7. An Offence under this Act is cognizable, non-bailable, and non-compoundable.
PROVISIONS OF THE ACT
A. Definitions
1. Section 2 (i) defines – Pre-natal diagnostic procedures as all gynecological or obstetrical or medical procedures such as ultrasonography fetoscopy, taking or removing samples of amniotic fluid, chorionic villi, blood, or any tissue of a pregnant woman for being sent to a Genetic Laboratory or Genetic Clinic for conducting a pre-natal diagnostic test.
2. Section 2 (k) defines – Pre-natal diagnostic tests as ultrasonography or any test or analysis of amniotic fluid, chorionic villi, blood, or any tissue of a pregnant woman conducted to detect genetic or metabolic disorders or chromosomal abnormalities or congenital anomalies or hemoglobinopathies, or sex-linked diseases.
3. The pre-natal diagnostic technique includes both pre-natal diagnostic procedures and pre-natal diagnostic tests. – Section 2(j).
4. Section 2(m) defines – a registered medical practitioner as a medical practitioner who possesses any recognised medical qualification as defined in clause (h) of section 2 of the Indian Medical Council Act, 1956, (102 of 1956.) and whose name has been entered in a State Medical Register.
5. Section 2(g) defines – a medical geneticist as a person who possesses a degree or diploma or certificate in medical genetics in the field of pre-natal diagnostic techniques or has experience of not less than two years in such field after obtaining– (i) any one of the medical qualifications recognised under the Indian Medical Council Act, 1956 (102 of 1956); or (ii) a postgraduate degree in biological sciences.
B. Regulation of Genetic Counselling Centers, Genetic Labs, and Genetic Clinics.
Chapter II, Section 3 deals with the regulation of genetic counseling centers, genetic labs, clinics, and centers. It provides that from the date of commencement of this Act.
1) No Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic unless registered under this Act, shall conduct or associate with, or help in, conducting activities relating to pre-natal diagnostic techniques;
2) No Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic shall employ or cause to be employed any person who does not possess the prescribed qualifications;
3) No medical geneticist, gynecologist, pediatrician, registered medical practitioner or any other person shall conduct or cause to be conducted or aid in conducting by himself or through any other person, any pre-natal diagnostic techniques at a place other than a place registered under this Act.
C. Regulation of Pre-Natal Diagnostic Techniques.
1) Chapter III from Section 4 to 6 deals with the regulation of Pre-natal diagnostic techniques.
2) Section 4 deals say that- on and from the commencement of this Act,-(1) no place including a registered Genetic Counselling Centre or Genetic Laboratory or Genetic Clinic shall be used or caused to be used by any person for conducting pre-natal diagnostic techniques except for the purposes specified in clause (2) and after satisfying any of the conditions specified in clause (3).
3) Section 5 deals with the written consent of the pregnant woman and the prohibition of communicating the sex of the foetus.
4) Section 6 strictly prohibits the determination of Sex.
D. Central Supervisory Board
1. Chapter IV deals with the provisions relating to the Central Advisory Board.
2. As per Section 7, the Central Government shall constitute a Board to be known as the Central Supervisory Board to exercise the powers and perform the functions conferred on the Board under this Act.
3. This chapter lays down the formation, elements, and basic functions of the Board.
E. Chapter VI deals with the Registration of Genetic Counselling Centers, Genetic Laboratories, and Genetic Clinics.
F. Offenses and Penalties.
1. Chapter VII, Sections 22 to 28 deals with the penal provisions.
2. Section 22 deals with the prohibition of advertisement relating to the determination of sex
3. Section 23 deals with the penalty of the same. As per this section, the person who is in non-compliance with the section 22 is punishable with imprisonment for a term which may extend to three years and with a fine which may extend to ten thousand rupees and on any subsequent conviction with imprisonment which may extend to five years and with fine which may extend to fifty thousand rupees.
4. Section 24 says that, in case of compulsion by her husband or the relative to undergo pre-natal diagnostic technique, such person shall be liable for abetment of offence under sub-section (3) of section 23 and shall be punishable for the offence specified under that section. That is imprisonment for a term which may extend to three years and with a fine which may extend to ten thousand rupees and on any subsequent conviction with imprisonment which may extend to five years and with a fine which may extend to fifty thousand rupees.
5. Section 28 deals with the jurisdiction of the courts. As per this section
– No court shall take cognizance of an offence under this Act except on a complaint made by
(a) the Appropriate Authority concerned, or any officer authorized in this behalf by the Central Government or State Government, as the case may be, or the Appropriate Authority
(b) a person who has given notice of not less than thirty days in the manner prescribed, to the Appropriate Authority, of the alleged offence and of his intention to make a complaint to the court.
(2) No court other than that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act.
(3) Where a complaint has been made under clause (b) of subsection (1), the court may, on-demand by such person, direct the Appropriate Authority to make available copies of the relevant records in its possession to such person.
CASE LAWS
Cehat v. Union of India
In the census taken in 2001, it was found that there has been a considerable decline in sex ratio. It was found that this affected some states severely and the conclusion was that; this is due to the pre-natal diagnostic techniques. The case is a P.I.L. through which the Supreme Court of India passed several directions as to the proper implementation of the Act and also it set out the importance of public awareness to be created against this practice. Further, the judgement passed by the Bench containing M.B. Shah and Ashok Bhan raised grave concern over the social issue of discrimination against girl-child in India.
Voluntary Health Association of Punjab v. Union of India and Ors.
In this landmark judgment, various directions were made by the Supreme Court to the State and Central Supervisory Boards and Advisory Committees that a proper knowledge as to the registered and unregistered clinics should be made through mapping. It further stated that the authorities must seize and confiscate those sonography machines used contrary to the provisions of the Act. The judgment also stated that various awareness programmes and welfare schemes are to be adopted by the respective governments to empower women.
Vinod Soni and Anr v. Union of India
In this petition, a married couple approached the apex court challenging the constitutional validity of the PC-PNDT Act. As per the petition, the provisions of the Act were in violation of the Fundamental Right provided under Article 21 of the Indian Constitution. They claimed that the Right to Personal Liberty included choosing the sec of the child. The Court held that, right to bring into existence life in the future with a choice does not mean that the right includes the right to determine the sex of that life. Thus, this petition was dismissed on the ground that there is no right with regards to the selection of sex.
AMENDMENT – 2003
The PC-PNDT Act was amended in 2003 with a view to improve the regulation and to deal with the inadequacies which increased due to the passing of time and improvements in time. The concepts like preconception sex and ultrasound technique were brought under the purview of this Act through the amendment. And it empowered the Central and State Supervisory Boards further.
ANALYSIS
Sex ratio is one of the important factors that determine the progress of a nation. When there is a decline in the sex ratio, it shows that the country is lacking in a lot of ways economically, education-wise, poverty, health care, the standard of living, security, etc. It also indicates that there are ‘surplus men’. The violence against women will be also at a soaring high rate when there is a decline of this sought. India has seen a huge decline over the last two decades. This clearly shows that, even after the PC-PNDT Act was adopted, the governments have considerably failed to implement the same. It is the need of the hour to acknowledge the same. The Act is to be scrutinized taking into consideration those aspects which hinder the proper implementation of the same. India must implement the PC-PNDT more stringently, and also dedicate in creating more awareness and making use of more resources to fight the preference for boys.
REFERENCE
[1] Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act, 1994, No. 57, Acts of Parliament, 1994 (India).
[2] Cehat v. Union of India, (2003) 8 SCC 398.
[3] Voluntary Health Association of Punjab v. Union of India and Ors., AIR 2013 SC 1571.
[4] Vinod Soni And Anr v. Union of India, 2005 Cri.L.J. Bom. 3408.