Kumar Amogh & Shruti Upadhyay, Students, Law College, Faculty of Uttaranchal University, Dehradun
Introduction
The case CEHAT and Ors. v. Union of India[1] was a landmark case of 2003, about criminalization of the discrimination based on sex at a prenatal stage in order to eliminate female infanticides and proper implementation of the PNDT Act. Centre filed a PIL for Enquiry Into Health and Allied Themes and others in order to implement the Pre - Natal Diagnostic Techniques (Prohibition of sex selection) Amendment Act, 2003 after an alarming decline in the sex ratio of India which could have been seen in the 2001 census. Also, this case sets the best example that mere enactment of the law does serve the purpose but its implementation, as well as its execution, is equally important.
Description/Background
Facts: A Public Interest Litigation was filed in the Supreme Court based on the fact that a very few people were aware of the new amended Act which was then named as the Pre - Conception Pre - Natal Diagnostic Techniques (Prohibition of Sex Selection) Act. The case was submitted on the basis that the amendment conforms with the various direction issued by this court, therefore, the amended Act also requires to be correctly implemented and for this purpose, the learned counsel for the petitioners seeks the various reliefs.
Legal History: In order to eradicate sex selection at the prenatal Stage the Act of Prenatal Diagnostic Techniques (Regulation and Prevention of misuse) Act, 1994 was amended, and a new title was given to it which was Pre – Conception and Pre – Natal Diagnostic Techniques (Prohibition of Sex Selection) Act. Along with this individual other sections were also amended which are as follows – Sections 1, 2, 3, 4, 5, 6, 7, 14, 15, 16, 17, 18, 22, 24, 28, 30 and 32. Individual new Sections were also added in the Act which are SectionS 3A, Section 3B, Section 16A, Section 17A and Section 31A respectively.
Primary Legal Issues: The main legal issue, in this case, was to implement the PNDT (Pre – Conception Pre - Natal Diagnostic Techniques) Amendment Act, 2003 which criminalizes the prenatal sex determination and also appoints certain authorities as mentioned in the Act to check, control and make reports on female infanticide.
Analysis:
In order to analyze the following case, the ratio decidendi which followed and what were its effects in the country, specific questions are written down below, answering which will do the full case analysis. Also, apart from the Indian perspective view, some international perspectives have also been tried to touch.
1. What was the prayer made to the Court by the petitioner?
Ans. India has always been a patriarchal society which gives the male member in the society, a higher degree of value than the female members of the society. As a result, there are many malpractices against the women of our society like dowry. Thus, to prevent these there are laws enacted by the Indian Parliament, for example, the Dowry Prohibition Act, 1961. In the following case, the petitioner had filed a PIL and prayed to the Hon’ble Supreme Court to that the Centre and the State Government implement the PNDT Act (Pre – Conception and Pre - Natal Diagnostic Techniques Act as there was a misuse of modern science and technology by preventing the birth of girl child by sex determination before birth and after that abortion, which was evident from the 2001 Census figures which revealed a more significant decline in sex ratio in the 0-6 age group.
2. What was the ratio decidendi of the Court, and was it appropriate?
Ans. The ratio decidendi of the Supreme Court were as follows –
· To effectively and immediately implement the Act and publish advertisements about it in the newspaper as well as on the social media and the process shall continue till the public gets aware and does not discriminate between a male and female child.
· The appropriate authority (as mentioned in the Act) shall submit appropriate reports, quarterly, to the Supervisory Board which shall be published for the information of the public at large.
· The appropriate authorities shall maintain the records of all the meetings of the Advisory Committee.
· The public can have access to the records maintained by different committees, as mentioned under the Act.
· The Central Supervisory Board shall ensure that the federal states Delhi, Himachal Pradesh, Tamil Nadu, Tripura and Uttar Pradesh appoint State Supervisory Board as per Section 16A of the Act.
· As per Section 17 (3) (a), the Centre Supervisory Board shall ensure that the states Jharkhand, Maharashtra, Tripura, Tamil Nadu and Uttar Pradesh appoint multi-member appropriate authorities.
The following case did not demand any changes in the law or declaration of any law as null and void and did not violate either the fundamental rights or any of the legal rights of the people of India, and the PIL was filed just in order to implement the PNDT Act made by the Indian Parliament; thus, the court decision was appropriate, and none of the arguments or prayer of the petitioner was left unheard.
3. Did the Supreme Court interpret the laws correctly?
Ans. In the following case, there was no such meaningful interpretation of any of the laws, policies or statutes were required. The Supreme Court kept in mind the census of 2001 which clearly showed a decline in sex ratio, which was a clear violation based on gender as the modern sex determination techniques were abused to produce only male child either before or during pregnancy selectively.
4. Was the reasoning of the Supreme Court logical?
Ans. Clearly, there was no mistake in the reasoning of the court while pronouncing the judgment as there was clear discrimination towards a female child, which may have led to a severe problem in the future. It was one of the significant steps taken by the highest appealing authority of India to change the mindset of the people regarding female child and change India from a patriarchal to a gender-equal society.
5. Were any of the arguments or prayers were left unheard by the Supreme Court?
Ans. No, none of the arguments or prayers made to the Supreme Court of India where left unheard and important directions were given to both the Central and the State Government with some special committees to be appointed in individual states as mentioned in the Section 16A and 17 of the PNDT Act.
6. What was the effect of the judgment of the Supreme Court on the general public in the following case?
Ans. There were no such controversies regarding the judgment of the Supreme Court in the following case, although the general public became sensitive towards the issues like gender discrimination, female infanticide and decline of sex ratio. Although, there have been cases that couples go to different foreign countries where prenatal sex determination is legal in order to determine the sex of their unborn child, thus, due to this, the Central Government of India keeps an eye on the pregnant women who may have visited any such countries.
7. Whether the same subject matter has been addressed in any case of a foreign jurisdiction?
Ans. Generally, there have not been such cases regarding female infanticide in foreign nations. However, there have been specific conferences worldwide to make sure that the public at large becomes sensitive to the issue of female infanticide. Some of the conferences and summits are as follows –
· World Conference of the International Women’s Year, in Mexico City from 19th June 1975 to 2nd July 1975.
· World Conference of the United Nations Decade for Women: Equality, Development and Peace Copenhagen 14th July to 30th July 1980.
· 5th Annual Women’s Empowerment Principles Event (WEPE), 6th March 2013.
Conclusion
The case CEHAT and Others v. Union of India is a severe case as it clearly shows the discrimination towards the female in our Indian Society. The Supreme Court, in this case, acted as a monitoring authority over the Government of India and also showed that enactment of the law is not enough; its implementation and execution are also necessary. The 2001 census clearly showed the decline in sex ratio, which was 933 males per 1000 females which was very alarming. This case also sets an example that whenever a new modern technique is introduced in the society for the benefit of the people, a law shall also be enacted, implemented and executed which shall curtail the abuse of such technology.
After this case and the implementation of the PNDT Act, 2003, the society has become aware of the discrimination towards the females prevailing in our Indian Society. As per the 2011 census, the sex – ratio in India was 943 males for every 1000 males which is far better than the 2001 census.
However, it can generally be concluded that prima facie the general public or the public at large is aware of the consequences of sex determination practices, and the society has been sensitized about the issue.[2] We can also see that many of the hospitals have a banner which clearly shows that ‘Pre – Natal Sex Determination is an offence and is not done here. To conclude, it shall be kept in mind that as far as complete eradication of sex – discrimination in the Indian Society is considered, we still have to cover a very long journey.
[1] CEHAT v. Union of India, (2003) 8 SCC 412. [2] S. Tripathi, #GenderJustCourts – Female Infanticide: CEHAT & Ors. v. Union of India, available at https://medium.com/strategic-advocacy-for-human-rights/genderjustcourts-female-infanticide-cehat-ors-vs-union-of-india-154e2d603ff3#:~:text=The%20CEHAT%20case%20is%20a,order%20to%20eradicate%20female%20infanticide., last seen on 15/08/2020.