This article has been written by Mantrana jain a 1st year LLB Student from National Forensic Sciences University school of law Forensic justice and policies studies college.

Title: 

Introduction:

Sex determination tests, also known as prenatal diagnostic techniques, have become a topic of concern in many countries, including India. These tests are primarily used to determine the sex of a fetus, often resulting in the selective abortion of female fetuses, contributing to the imbalanced sex ratio in the country. Recognizing the severe consequences of this practice, India has enacted laws and regulations to prevent and penalize sex determination tests. This article explores the criminal consequences of sex determination tests under Indian law, highlighting the legal framework and the penalties imposed on those involved in such activities.

The Legal Framework:

The Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (PCPNDT Act), amended in 2003, forms the legal foundation for combating sex determination tests in India. The Act aims to regulate and control the use of prenatal diagnostic techniques, prevent the misuse of technology for sex determination, and protect the lives of unborn female children. It provides for both civil and criminal penalties to deter offenders.

Criminal Consequences:

1. Doctors and Medical Professionals:

Under the PCPNDT Act, medical professionals who conduct or facilitate sex determination tests face criminal liability. The Act prohibits the disclosure of the sex of the fetus to the pregnant woman or her relatives, and any violation of this provision can result in imprisonment and fines. Doctors found guilty of conducting or helping with sex determination tests can face imprisonment for up to three years for the first offense and up to five years for subsequent offenses. In addition, their medical registration may be suspended or canceled.

2. Laboratories and Clinics:

Diagnostic laboratories and clinics that perform sex determination tests are also subject to criminal penalties. If found guilty, they can face imprisonment for up to three years for the first offense and up to five years for subsequent offenses. Authorities can also seal the premises of such establishments and cancel their registration.

3. Pregnant Women and their Families:

While the primary focus of the law is on curbing the activities of medical professionals and institutions, the PCPNDT Act also recognizes the role of pregnant women and their families in seeking sex determination tests. The Act prohibits pregnant women and their families from seeking or promoting such tests. If they are found guilty, they can face imprisonment for up to three months, a fine, or both.

4. Others Involved:

The Act also penalizes any person who communicates the sex of the fetus to the pregnant woman or her relatives. This provision targets intermediaries who may assist in arranging or facilitating sex determination tests. Offenders can face imprisonment for up to three months, a fine, or both.

CASE LAW

1.Case: State of Punjab v. Ramdev Singh and Ors. (2004)

Citation: (2004) 2 SCC 297

Facts:

In this case, the accused individuals were charged under various sections of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (PCPNDT Act). The prosecution alleged that the accused, who were medical professionals, were involved in conducting sex determination tests and facilitating the selective abortion of female fetuses. The case was brought before the Supreme Court of India to determine the criminal liability of the accused.

Decision:

The Supreme Court, in this landmark judgment, addressed several crucial issues related to sex determination tests and their criminal consequences. The Court emphasized the need to strictly enforce the PCPNDT Act to eradicate the practice of sex-selective abortions. The following key points emerged from the judgment:

1. Criminal Liability: The Court held that medical professionals who are involved in conducting sex determination tests and facilitating the selective abortion of female fetuses can be held criminally liable under the PCPNDT Act.
2. Stringent Punishment: The Court observed that the punishment prescribed under the PCPNDT Act is lenient and inadequate to deter offenders. It recommended stricter penalties to effectively curb the practice and protect the rights of the unborn girl child.
3. Duty of Medical Professionals: The Court emphasized that medical professionals have a duty to uphold medical ethics and respect the right to life and gender equality. It stated that any breach of this duty would result in serious consequences, including criminal prosecution.
4. Role of Judiciary: The Court stressed the role of the judiciary in actively monitoring the implementation of the PCPNDT Act and ensuring strict compliance. It directed the lower courts to expedite trials related to offenses under the Act and adopt a zero-tolerance approach towards violators.

Significance:

The State of Punjab v. Ramdev Singh case set an important precedent in the criminal consequences of sex determination tests in India. The judgment highlighted the need for stringent punishment to deter offenders and protect the rights of female fetuses. It emphasized the responsibility of medical professionals in upholding medical ethics and preserving the sanctity of life. The case also underscored the role of the judiciary in actively monitoring and enforcing the PCPNDT Act to eliminate the practice of sex-selective abortions.

2. State of Maharashtra v. Dr. Pravin Bhatia (2009):

The Supreme Court, in this case, upheld the conviction of a doctor who had violated the provisions of the PCPNDT Act by conducting sex determination tests and revealing the sex of the fetus. The court held that the Act was enacted to safeguard the rights and lives of unborn female children and reiterated the need for strong legal measures to prevent sex-selective abortions.

3. Devika Biswas v. Union of India (2016):

This case dealt with the issue of advertisements promoting sex determination tests. The Supreme Court directed search engines, including Google, Yahoo, and Microsoft, to strictly comply with the PCPNDT Act and prohibit any advertisements or sponsored links related to sex determination tests. The court recognized that online advertisements were contributing to the prevalence of such illegal practices and emphasized the responsibility of search engines in preventing their promotion.

4. The State of Rajasthan v. Vidya Dhar (2018):

In this case, the Rajasthan High Court upheld the conviction of a doctor who was involved in conducting sex determination tests and providing false information. The court emphasized that doctors have a duty to uphold medical ethics and adhere to the provisions of the PCPNDT Act. It highlighted the need for strict punishment to deter others from engaging in similar activities.

Conclusion:

Gender-based discrimination and an unequal sex ratio exist in India as a result of sex determination tests and the accompanying selective abortion of female foetuses. India has passed the PCPNDT Act in an effort to stop these practises and give perpetrators harsh criminal penalties after seeing the severity of the problem. To have a deterrent impact and protect the lives of unborn girls, the law specifically targets medical experts, diagnostic laboratories, pregnant women, and other participants in the process. To stop the threat of sex determination tests and advance gender equality in society, efforts must be made to enforce and improve the law’s enforcement.

Reference 

• Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (PCPNDT Act),

• https://www.livelaw.in/top-stories/prenatal-sex-determination-grave-gender-equality-supreme-court-169156
• https://blog.ipleaders.in/pre-conception-and-pre-natal-diagnostic-techniques-prohibition-of-sex-determination-act-2003/?amp=1
• https://indiankanoon.org/doc/255210/
• https://indiankanoon.org/doc/96793023/
• https://indiankanoon.org/doc/28938556/
• https://indiankanoon.org/doc/1765956/