GENDER INEQUALITY-HOW IMPORTANT IT IS FOR US TO RECOGNIZE AND CELEBRATE OUR HEROES AND SHE-ROES!
“That society should not want a girl child;that efforts should be made to prevent the birth of a girl child and that society should give preference to a male child over a girl child is a matter of grave concern.Such tendency offends dignity of women. It undermines their importance.It violates woman’s right to life.It violates Article 39(e) of the the Constitution which states the principle of state policy that the health and strength of women is not to be abused.It ignores Article 51A(e) of the Constitution which states that it shall be the duty of every citizen of India to renounce practices derogatory to the dignity of women. Sex selection is therefore against the spirit of the Constitution.It insults and humilates womanhood.This is perhaps the greatest argument in favour of total ban on sex selection.”
Hon’ble Smt.Ranjana Desai,J.
(Vijay Sharma Vs. Union Of India AIR 2008 Bom.29)
PREFACE-
Son preference and discrimination against girl child is almost universal in India and manifests itself in many ways,including sex selection i.e.pre -birth elimination of female foetuses.This practice has led to decline in the Child Sex Ratio in most parts of India.Gender inequalities have persisted in India since centuries. This manifests itself in the form of sex selection, infanticide, neglect, lack of access to education, health care ,nutrition, early marriages,repeated and frequent pregnancies at a very young age,violence,etc.
Principles of gender equity are an integral part of Constitution. The Constitution confers equal rights and opportunities on women,bars discrimination on the basis of sex and denounces practices derogatory to the dignity of women.In spite of this,discrimination against women and girls is almost universal. Forced abortions of female foetuses and prenatal sex determination results in millions of girls not being allowed to born just because they are girls.
BACKGROUND-
Two laws that prohibit the sex selection of a foetus in India are the Medical Termination of Pregnancy Act, 1971 (MTP), as amended in 2002, and the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 (PNDT), as amended in 2003 to Pre-conception and Pre-natal Diagnostics Techniques (Prohibition of Sex Selection) Act (PCPNDT). The former Act prohibits abortion except only in certain qualified situations, while the latter prohibits the sex selection of a foetus with a view towards aborting it.
The laws of India do not permit abortion. The Medical Termination of Pregnancy Act, 1971 (MTP)Act, which prohibits abortion, was enacted with a view towards containing the size of the family. However, in some cases the desire for a small family may have outweighed the desire for a child of a specific gender, leading to abortions where the sex of the foetus was different from that desired by the family. The MTP Act stipulated that an abortion may lawfully be done in qualified circumstances. But the unscrupulous connived to misuse the law to have abortions conducted for the purpose of sex selection.
Later, innovative technologies made sex selection easier, and without the regulations to control the use of such technologies, these technologies began to be misused for sex-selective abortions. These actions necessitated enactment of the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 (PNDT) in 1994. This act was amended in 2003 in an effort to close loopholes contained in the original act.
TERMINATION OF PREGNANCY AND ABORTION IN INDIA-
Abortion of foetus in India is governed by various abortion laws in India. Indian abortion laws or the abortion laws in India to govern the legality or illegality of abortion in India are as follows :
Indian Penal Code – Till 1971 the law relating to abortion in India is the Indian Penal Code (IPC) which provided for the provisions of abortion laws in India. However, IPC does not provide for direct provisions related to abortion laws in India but it deals with miscarriage under section 312 to 316 of the code.
Medical Termination of Pregnancy Act –
In the year 1971 to answer the question is abortion legal in India or whether the abortion is legal in India before marriage. The act deals with the provisions of abortion laws in India. The act provided that a pregnancy may be terminated till the first 12 weeks of the pregnancy with the approval of a medical practitioner. For abortion between 12-20 weeks of pregnancy, approval of two medical practitioners are required. The approval is mandated to make sure that the abortion is being done in accordance with the abortion laws in India and whether the abortion is legal in India or not. The act does not provide for the sex selective abortions.
So, to answer the question- Is abortion legal in India? The answer is that it is legal under some circumstances and illegal in others. The abortion laws in India provide that if the abortion is being done by the adult then no parental or spousal approval is needed for the same.
MEDIA CAMPAIGNS AND GOVERNMENT INITIATIVES-
With media campaigns and government programmes offering incentives for the birth and empowerment of the girl child, activists hope that solutions to the menace of female infanticide or foeticide would be closer home. Schemes such as the Balika Samriddhi Yojana (1997), Dhan Laxmi Scheme (2008) and the Beti Bachao Beti Padhao Yojana (2015) have been launched with education, income generation, immunization and insurance for the girl child in focus.
There has been no real survey yet to find out how far or how well they have worked. However, a few studies show mixed results. Haryana recorded improvements from 900 girls in 2016 to 914 girls in 2017. But Gujarat showed an alarming dip. In 2007, there were 891 girls for 1000 boys, while in 2014-16, there were 848 girls for 1000 boys.
It is clear that the issue is as much about figures as social indicators, and the solution lies not only in educating women but also empowering them. Studying the reasons behind the rise in Child Sex Ratio (CSR) and conducting determined campaigns for solutions would help to create a more balanced gender ratio.
IMPEDIMENTS-
The Act is not being implemented with the zeal and vigour which was expected in implementation of this important piece of social welfare legislation. This is reflected by the fact that there are very few prosecutions launched and hence not many case laws are available. The majority of rulings deal with challenges raised to the Constitutional validity of the Act and to the directions issued by the Higher Courts for effective implementation of the Act. There are very few cases which are registered, prosecuted and are finally decided after full fledged trial. Hence vast body of decisional law of the district and trial courts,where the bulk of the cases are ordinarily filed,fought and decided, is not available under this Act. Moreover,there are few convictions under the Act. It has also been difficult to implement the Act because sex selection happens within the confines of the doctor client relationship.
Moreover most of the cases booked under the Act are still pending for trial and are also concerned with ultrasonography centres not having licenses and registrations. Very few of them deal with the problem of sex selection. Very few provisions of the Act have been put up for judicial interpretation as the unfolding of the Act is yet to take place in the manner it was expected. There are several other social causes for the same. The Act,however, aims and attempts to address
technology and medical issues but not social issues. Sex selection is the result of unholy alliance between traditional values and modern technology. The Act regulates the use of technology but the mindset of the people who adopt and practice this cannot be addressed by Law. Girl Child still remains unwanted in several households. These hard realities of life cannot be ignored and are required to be addressed in implementation of the Act. It hence becomes the duty of the society as to eliminate this social evil by effective implementation of the provisions of the Act with the sensitivity it deserves.
The consequences of declining sex ratio are serious, all pervading and far reaching.The burden of the legal community including the bench and the bar in such situation becomes onerous. If the mindset of society is not changed and it lags behind the legislation, it has to be the job of judiciary to fill this gap by adopting a realistic and sensitive approach for proper implementation of the legislation. The need of the hour is to mould and evolve the law so as to meet its object by effective implementation.
MY SUBMISSION-
I feel,the laws should be viewed in the larger context as this issue impacts the delicate equilibrium of nature and destroy our social,moral and cultural fabric. An attempt should be made to draw a connect with the implementation of the Hindu Succession Act,the Protection of Women from Domestic Violence Act and the Dowry Prohibition Act. At the same time,while working on sex selection, utmost precaution should be taken to ensure that women’s access to safe and legal abortion does not get compromised.
Let us contribute towards the cause to make the girl child a ‘Laadli’ of everyone.