Gender biased sex selection is one of the many discriminatory practices followed in our country. This has led to lesser number of girls being born as compared to boys. The Child Sex Ratio, number of girls per 1000 boys in the 0-6 years age group in India has shown a sharp decline from 976 in 1961 to 918 in 2011(Census 2011). Sex Ratio at Birth (SRB), the number of girls born for 1000 boys was 898 (SRS 2015). The practice of sex selection is prevalent across the country and not limited to certain parts or regions, although trends show that the prevalence is much higher amongst the urban, educated, socio-economically well off segments.

Gender biased sex selection is a result of a complex web of social, economic and cultural factors. The most dominant contributory factors are the deeply entrenched son preference, rapid decline in fertility, and access to technology and its misuse.

Sex selection is a reflection of the low status of women in society and a patriarchal mindset. It occurs because of the perceived financial cost of having a girl child, which includes paying for her education and community customs that put burden on the family, including the increasing cost of marriages and the practice of dowry. In general this perception conjoined with the practice of patrilocal marriages, creates a mindset that girls are a liability and boys assets because of reasons of lineage, the perception that they would provide old age support and because it is believed that salvation would only be attained if the son does the last rites.

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In recent years, the total fertility rate has been declining. While couples want smaller families they also want to have a particular sex composition of their families with at least one if not two boys and the wide availability of sonography techniques at affordable prices and their misuse has further added to the declining SRB.

Taking cognizance of this issue and in view of the growing misuse of technology, The Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act was enacted in 1994. The Act was amended in 2003 to include under its ambit Pre-conception techniques that could be used for sex selection and was called the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act. The amended Act prohibits sex selection before or after conception. It regulates use of pre natal diagnostic techniques permitting them only on medical grounds and prevents their use for sex determination. It also prohibits communication of sex of
the foetus and advertisements in any form related to sex selection. It imposes a fine and imprisonment on doctors indulging in this practice and on relatives who force women to undergo sex selection.

On a number of occasions the Constitutional validity of the Act was challenged on the ground that it violates certain rights guaranteed by the Constitution of India.

In the Vinod Soni v.s Union of India, (2005 Cri. L. J. Bom. 3408) case, the Constitutional validity of the Act was challenged on the ground that it violates the right to life and personal liberty of a citizen of India, guaranteed under Article 21 of the Constitution. The petitioners felt that the Act restricts a couples right to have a family of their choice, which can be done if they had they had the personal liberty of choosing the sex of the child.

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The High Court of Bombay after dealing with object of the Act held that this law was enacted to uphold the dignity of women. The right to personal liberty cannot by any stretch of imagination be expanded to include the liberty to choose the sex of the child. The Court held that “the right to bring into existence a life in future with a choice to determine the sex of that life can not in itself be a right.” It was further stated Right to Life under Article 21 cannot include right to selection of sex, whether pre-conception or post-conception. The petition was dismissed holding that it does not violate Article 21 of the Constitution.

In the Vijay Sharma v.s Union of India case, the Constitutional validity of the PCPNDT Act, was challenged on the ground that it violates the principle of equality enshrined in Article 14 of the Constitution. Petitioners argued that couples having children of one sex should be allowed to make use of pre-natal or pre-conception diagnostic techniques to have a child of the opposite sex. It was also argued that if anguish caused by an unwanted pregnancy can be recognized as the ground for terminating a pregnancy under the Medical Termination of Pregnancy Act, why anguish is caused to a mother who conceives a male or female child the second or third time not considered under the PCPNDT Act.

The High Court after elaborately dealing with the object, reasons and provisions of the Act held that there can be no comparison between the MTP and PCPNDT Acts as both these acts are very different. It was also held that anguish of a mother who wants to bear a child of specific sex cannot be equated with a mother who wants to terminate her pregnancy for other reasons. The Court further stated that the declining sex ratio in various parts of the country is a critical issue of concern. It held that the unwantedness of girls leading to sex selection is against the spirit of Law and Constitution. “Such practices, offend the dignity of women. It undermines their importance. It insults and humiliates womanhood”.

In both the above judgments, the constitutional validity of the Act was upheld, with the court making it clear that sex selection is neither a matter of right to personal liberty nor can it be covered under the right to equality.

In a few other judgments like CEHAT and others v.s Union of India (AIR 2003 SC 3009), Voluntary Health Association of Punjab v.s Union of India and Others (AIR 2013 SC 1571), the Apex Court has given explicit directions to the State Governments to implement the PCPNDT Act in letter and spirit and also to create awareness to change mindsets that prefer sons over daughters and work towards improving the value of the girl child.

These judgments clearly bring out the proactive role of our judiciary in upholding the values of gender equality and denouncing practices that are derogatory to the dignity of women.

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Anuja Gulati is a Gender Consultant at Population First.

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