मंगलवार, 5 जुलाई 2011

कन्या भ्रूण हत्या रोको

 - अरविन्द सिसोदिया 

हालिया जनगणना में ० से ६ वर्ष की आयु के बच्चों में लडकियों का अनुपात बहुत घट गया है , देश के कई राज्यों में प्रत्येक १००० लड़कों पर १०० से १५० लड़कियां कम हैं | इस तरह की स्थिति में कुछ साल बाद बड़ी संख्य में पुरुष कुआरे ही रह जायेंगे और इस स्थिति से समाज में भारी विकृति हो सकती है | इस लिए कन्या भ्रूण हत्या पर प्रभावी रोक की आवश्यकता है |

उपरोक्त  सामग्री क़ानूनी संदर्भ को जानने के लिए पठनीय  है ...

http://teesarakhamba.blogspot.com/2010/03/1994-pre-natal-diagnostic-techniques.html

Wednesday 3 March 2010

कन्याभ्रूण हत्या से संबंधित कानून




    निशांत दुबे ने पूछा है--
भारत में कन्याभ्रूण हत्या रोकने के लिए कौन से कानून है एवं इस विषय पर सुप्रीमकोर्ट के कुछ निर्णय क्या आप बता सकते है?

   उत्तर--

 निशान्त जी!
भारत में कन्या भ्रूण हत्या को रोकने के लिए 1994 में पहली बार कानून THE PRE-NATAL DIAGNOSTIC TECHNIQUES (REGULATION AND PREVENTION OF MISUSE) ACT, 1994 बनाया गया। तथा 1996 में इस के अंतर्गत नियम तथा सलाहकार समिति के नियम बनाए गए। बाद में महसूस किया गया कि यह कानून पर्याप्त नहीं है तब इस कानून में 2002 तथा 2003 में संशोधन किए गए हैं। 
स कानून के अंतर्गत वर्ष 2000 में एक रिट याचिका सुप्रीम कोर्ट के समक्ष सेंटर फॉर इन्क्वाइरी इन टू हेल्थ एंड एलाइड थीम्स द्वारा प्रस्तुत की गई थी। इस याचिका की सुनवाई के दौरान सुप्रीम कोर्ट ने कुछ निर्देश सरकारों को दिए थे। जिन का उल्लेख इस निर्णय में दिया गया है। यह निर्णय आने के पूर्व इस कानून में वर्ष 2002 तथा वर्ष 2003 में संशोधन किए गए हैं। 
प मूल कानून, उस में किए गए संशोधनों, नियमों तथा सुप्रीमकोर्ट के निर्णय को निम्न लिंक के माध्यम से  मूल ही अंग्रेजी  में पढ़ सकते हैं।

  • The PNDT (PRINCIPAL) ACT 1994              
  • The PNDT (PRINCIPAL) RULES 1996
  • The PNDT Advisory Committee Rules, 1996
  • The PNDT Amendment Act, 2002
  • The PNDT Amendment Rule, 2003 
  • सुप्रीम कोर्ट निर्णय दिनांक 10.09.2003 
  • ---------
  • Tuesday, March 2, 2010

    Judgment of Supreme Court of India on Female Foeticide

    Supreme Court of India
    Writ Petition (civil)  301 of 2000

    PETITIONER:
    Centre for Enquiry Into Health And Allied Themes (CEHAT) & Others   

    RESPONDENT:
    Union of India & Others   

    DATE OF JUDGMENT: 10/09/2003

    BENCH: M.B. SHAH & ASHOK BHAN.

    JUDGMENT: Shah, J.  
    It is an admitted fact that in Indian Society, discrimination
    against girl child still prevails, may be because of prevailing
    uncontrolled dowry system despite the Dowry Prohibition Act, as
    there is no change in the mind-set or also because of insufficient
    education and/or tradition of women being confined to household
    activities.  Sex selection/sex determination further adds to this
    adversity.  It is also known that number of persons condemn
    discrimination against women in all its forms, and agree to pursue, by
    appropriate means, a policy of eliminating discrimination against
    women, still however, we are not in a position to change mental set-up
    which favours a male child against a female. Advance technology is
    increasingly used for removal of foetus (may or may not be seen as
    commission of murder) but it certainly affects the sex ratio. The
    misuse of modern science and technology by preventing the birth of
    girl child by sex determination before birth and thereafter abortion is
    evident from the 2001 Census figures which reveal greater decline in
    sex ratio in the 0-6 age group in States like Haryana, Punjab,
    Maharashtra and Gujarat, which are economically better off.

        Despite this, it is unfortunate that law which aims at preventing
    such practice is not implemented and, therefore, Non-Governmental
    Organisations are required to approach this Court for implementation
    of the Pre-natal Diagnostic Techniques (Regulation and Prevention of
    Misuse) Act, 1994 renamed after amendment as "The Pre-conception
    and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection)
    Act" (hereinafter referred to as 'the PNDT Act') which is the normal
    function of the Executive.

    In this petition, it was inter alia prayed that as the Pre-natal
    Diagnostic Techniques contravene the provisions of the PNDT Act,
    the Central Government and the State Governments be directed to
    implement the provisions of the PNDT Act (a) by appointing 
    appropriate authorities at State and District levels and the Advisory
    Committees; (b)  the Central Government be directed to ensure that
    Central Supervisory Board meets every 6 months as provided under
    the PNDT Act; and (c) for banning of all advertisements of pre-natal
    sex selection including all other sex determination techniques which
    can be abused to selectively produce only boys either before or during
    pregnancy.  

        After filing of this petition, notices were issued and thereafter
    various orders from time to time were passed to see that the Act is
    effectively implemented.

    A]    On 4th May 2001, following order was passed:—
        "It is unfortunate that for one reason or the other,
    the practice of female infanticide still prevails despite the
    fact that gentle touch of a daughter and her voice has
    soothing effect on the parents.  One of the reasons may
    be the marriage problems faced by the parents coupled
    with the dowry demand by the so-called educated and/or
    rich persons who are well placed in the society.  The
    traditional system of female infanticide whereby female
    baby was done away with after birth by poisoning or
    letting her choke on husk continues in a different form by
    taking advantage of advance medical techniques. 
    Unfortunately, developed medical science is misused to
    get rid of a girl child before birth.  Knowing full well that
    it is immoral and unethical as well as it may amount to an
    offence, foetus of a girl child is aborted by qualified and
    unqualified doctors or compounders.  This has affected
    overall sex ratio in various States where female
    infanticide is prevailing without any hindrance.

    For controlling the situation, the Parliament in its
    wisdom enacted the Pre-natal Diagonstic Techniques
    (Regulation and Prevention of Misuse) Act, 1994
    (hereinafter referred to as "the PNDT Act").  The
    Preamble, inter alia, provides that the object of the Act is
    to prevent the misuse of such techniques for the purpose
    of pre-natal sex determination leading to female feoticide
    and for matters connected therewith or incidental thereto. 
    The Act came into force from 1st January, 1996. 

        It is apparent that to a large extent, the PNDT Act
    is not implemented by the Central Government or by the
    State Governments.  Hence, the petitioners are required
    to approach this Court under Article 32 of the
    Constitution of India.  One of the petitioners is the Centre
    for Enquiry Into Health and Allied Themes (CEHAT)
    which is a research center of Anusandhan Trust based in
    Pune and Mumbai.  Second petitioner is Mahila
    Sarvangeen Utkarsh Mandal (MASUM) based in Pune
    and Maharashtra and the third petitioner is Dr. Sabu M.
    Georges who is having experience and technical
    knowledge in the field.  After filing of this petition, this
    Court issued notices to the concerned parties on 9.5.2000. 
    It took nearly one year for the various States to file their
    affidavits in reply/written submissions.  Prima facie it
    appears that despite the PNDT Act being enacted by the
    Parliament five years back, neither the State
    Governments nor the Central Government has taken
    appropriate actions for its implementation.  Hence, after
    considering the respective submissions made at the time
    of hearing of this matter, as suggested by the learned
    Attorney General for India, Mr. Soli J. Sorabjee
    following directions are issued on the basis of various
    provisions for the proper implementation of the PNDT
    Act: -
    I.    Directions to the Central Government

    1.    The Central Government is directed to create
    public awareness against the practice of pre-
    natal determination of sex and female
    foeticide through appropriate releases /
    programmes in the electronic media.  This
    shall also be done by Central Supervisory
    Board ("CSB" for short) as provided under
    Section 16(iii) of the PNDT Act.

    2.    The Central Government is directed to
    implement with all vigor and zeal the PNDT
    Act and the Rules framed in 1996.  Rule 15
    provides that the intervening period between
    two meetings of the Advisory Committees
    constituted under sub-section (5) of Section 17
    of the PNDT Act to advise the appropriate
    authority shall not exceed 60 days.  It would
    be seen that this Rule is strictly adhered to.

    II.    Directions to the Central Supervisory Board
    (CSB)

    1.    Meetings of the CSB will be held at least once
    in six months. [Re. Proviso to Section 9(1)] 
    The constitution of the CSB is provided under
    Section 7. It empowers the Central
    Government to appoint ten members under
    Section 7(2)(e) which includes eminent
    medical practitioners including eminent social
    scientists and representatives of women
    welfare organizations.  We hope that this
    power will be exercised so as to include those
    persons who can genuinely spare some time
    for implementation of the Act.

    2.    The CSB shall review and monitor the
    implementation of the Act. [Re. Section
    16(ii)].

    3.    The CSB shall issue directions to all State/UT.
    Appropriate Authorities to furnish quarterly
    returns to the CSB giving a report on the
    implementation and working of the Act. 
    These returns should inter alia contain specific
    information about: -

    (i)    Survey of bodies specified in section 3
    of the Act.

    (ii)    Registration of bodies specified in
    section 3 of the Act.

    (iii)    Action taken against non-registered
    bodies operating in violation of section
    3 of the Act, inclusive of search and
    seizure of records.

    (iv)    Complaints received by the Appropriate
    Authorities under the Act and action
    taken pursuant thereto.

    (v)    Number and nature of awareness
    campaigns conducted and results
    flowing therefrom.

    4.    The CSB shall examine the necessity to
    amend the Act keeping in mind emerging
    technologies and difficulties encountered in
    implementation of the Act and to make
    recommendations to the Central Government.
    [Re. Section 16]

    5.    The CSB shall lay down a code of conduct
    under section 16(iv) of the Act to be observed
    by persons working in bodies specified therein
    and to ensure its publication so that public at
    large can know about it.

    6.    The CSB will require medical professional
    bodies/associations to create awareness
    against the practice of pre-natal determination
    of sex and female foeticide and to ensure
    implementation of the Act.

    III.    Directions to State Governments/UT
    Administrations

    1.    All State Governments/UT Administrations
    are directed to appoint by notification, fully
    empowered Appropriate Authorities at
    district and sub-district levels and also
    Advisory Committees to aid and advise the
    Appropriate Authority in discharge of its
    functions [Re. Section 17(5)].  For the
    Advisory Committee also, it is hoped that
    members of the said Committee as provided
    under section 17(6)(d) should be such
    persons who can devote some time for the
    work assigned to them.

    2.    All State Governments/UT Administrations
    are directed to publish a list of the
    Appropriate Authorities in the print and
    electronic media in its respective State/UT.

    3.    All State Governments/UT Administrations
    are directed to create public awareness
    against the practice of pre-natal
    determination of sex and female foeticide
    through advertisement in the print and
    electronic media by hoarding and other
    appropriate means.

    4.    All State Governments/UT Administrations
    are directed to ensure that all State/UT
    appropriate Authorities furnish quarterly
    returns to the CSB giving a report on the
    implementation and working of the Act. 
    These returns should inter alia contain
    specific information about: -

    (i)    Survey of bodies specified in section 3 of
    the Act.

    (ii)    Registration of bodies specified in section 3
    of the Act.

    (iii)    Action taken against non-registered bodies
    operating in violation of section 3 of the
    Act, inclusive of search and seizure of
    records.

    (iv)    Complaints received by the Appropriate
    Authorities under the Act and action taken
    pursuant thereto.

    (v)    Number and nature of awareness campaigns
    conducted and results flowing therefrom.

    IV.    Directions to Appropriate Authorities

    1.    Appropriate Authorities are directed to take
    prompt action against any person or body
    who issues or causes to be issued any
    advertisement in violation of section 22 of
    the Act.

    2.    Appropriate Authorities are directed to take
    prompt action against all bodies specified in
    section 3 of the Act as also against persons
    who are operating without a valid certificate
    of registration under the Act.

    3.    All State/UT Appropriate Authorities are
    directed to furnish quarterly returns to the
    CSB giving a report on the implementation
    and working of the Act.  These returns
    should inter alia contain specific information
    about: -

    (i)    Survey of bodies specified in section 3 of
    the Act.

    (ii)    Registration of bodies specified in section 3
    of the Act including bodies using ultrasound
    machines.

    (iii)    Action taken against non-registered bodies
    operating in violation of section 3 of the
    Act, inclusive of search and seizure of
    records.

    (iv)    Complaints received by the Appropriate
    Authorities under the Act and action taken
    pursuant thereto.

    (v)    Number and nature of awareness campaigns
    conducted and results flowing therefrom.

                 The CSB and the State Governments/Union
    Territories are directed to report to this Court on or
    before 30th July 2001.  List the matter on 6.8.2001 for
    further directions at the bottom of the list."


    B]    Inspite of the above order, certain States/UTs did not file their
    affidavits.  Matter was adjourned from time to time and on 19th
    September, 2001, following order was passed:—
        "Heard the learned counsel for the parties and
    considered the affidavits filed on behalf of various States. 
    From the said affidavits, it appears that the directions
    issued by this Court are not complied with.

    1.    At the outset, we may state that there is total
    slackness by the Administration in implementing the Act. 
    Some learned counsel pointed out that even though the
    Genetic Counselling Centre, Genetic Laboratories or
    Genetic Clinics are not registered, no action is taken as
    provided under Section 23 of the Act, but only a warning
    is issued.  In our view, those Centres which are not
    registered are required to be prosecuted by the
    Authorities under the provisions of the Act and there is
    no question of issue of warning and to permit them to
    continue their illegal activities.

    It is to be stated that the Appropriate Authorities or
    any officer of the Central or the State Government
    authorised in this behalf is required to file complaint
    under Section 28 of the Act for prosecuting the offenders.

    Further wherever at District Level, appropriate
    authorities are appointed, they must carry out the
    necessary survey of Clinics and take appropriate action in
    case of non-registration or non-compliance of the
    statutory provisions including the Rules.  Appropriate
    authorities are not only empowered to take criminal
    action, but to search and seize documents, records,
    objects etc. of unregistered bodies under Section 30 of
    the Act.

    2.    It has been pointed out that the States/Union
    Territories have not submitted quarterly returns to the
    Central Supervisory Board on implementation of the Pre-
    Natal Diagnostic Techniques (Regulation and Prevention
    of Misuse) Act, 1994 (hereinafter referred to as "the
    Act").  Hence it is directed that the quarterly returns to
    Central Supervisory Board should be submitted giving
    the following information:-

    (a)    Survey of Centres, Laboratories/Clinics,
    (b)    Registration of these bodies,
    (c)    Action taken against unregistered bodies,
    (d)    Search and Seizure,
    (e)    Number of awareness campaigns, and
    (f) Results of campaigns"

    C]    On 7th November, 2001, learned counsel for the Union of India
    stated that the Central Government has decided to take concrete steps
    for the implementation of the Act and suggested to set up National
    Inspection and Monitoring Committee for the implementation of the
    Act.  It was ordered accordingly.

    D]    On 11th December, 2001, it was pointed out that certain State
    Governments have not disclosed the names of the members of the
    Advisory Committee.  Consequently, the State Governments were
    directed to publish the names of advisory committee in various
    districts so that if there is any complaint, any citizen can approach
    them.  The Court further observed thus:—
    "For implementation of the Act and the rules, it
    appears that it would be desirable if the Central
    Government frames appropriate rules with regard to sale
    of ultrasound machines to various clinics and issue
    directions not to sell machines to unregistered clinics. 
    Learned counsel Mr. Mahajan appearing for Union of
    India submitted that appropriate action would be taken in
    this direction as early as possible.""
    E]    On March 31, 2003, it was pointed out that in conformity with
    the various directions issued by this Court, the Act has been amended
    and titled as "The Pre-conception and Pre-natal Diagnostic
    Techniques (Prohibition of Sex Selection) Act".  It was submitted that
    people are not aware of the new amendment and, therefore, following
    reliefs were sought:—
    a)    direct the Union of India, State Governments / UTs
    and the authorities constituted under the PNDT
    Act to prohibit sex selection techniques and its
    advertisement throughout the country;

    b)    direct that the appropriate authorities shall also
    include "vehicles" with ultra sound machines etc.,
    in their quarterly reports hereinafter as defined
    under Section 2(d);

    c)    any person or institution selling Ultra Sound
    machine should provide information to the
    appropriate State Authority in furtherance of
    Section 3-B of the Amended Act;

    d)    direct that State Supervisory Boards be constituted
    in accordance with the amended Section 16A in
    order to carry out the functions enumerated
    therein;

    e)    direct appropriate authorities to initiate suo moto
    legal action under the amended Section 17(iv)(e);

    f)    direct that the Central Supervisory Board shall
    publish half yearly consolidated reports based on
    the quarterly reports obtained from the State
    bodies.  These reports should specifically contain
    information on:

    1)    Survey of bodies and the number of bodies
    registered.

    2)    Functioning of the regulatory bodies
    providing the number and dates of meetings
    held.

    3)    Action taken against non-registered bodies
    inclusive of search and seizure of records.

    4)    Complaints received and action taken
    pursuant thereto.

    5)    Nature and number of awareness
    programmes.

    6)    Direct that the Central Supervisory Board
    shall carry out all the additional functions as
    given under the amended Section 16 of the
    Act, in particular, to oversee the
    performance of various bodies constituted
    under the Act and take appropriate steps to
    ensure its proper and effective
    implementation.

    As against this, Mr. Mahjan learned counsel
    appearing for the Union of India submits that on the basis
    of the aforesaid amendment, appropriate action has
    already been taken by Union of India for implementation
    and almost all State Governments/UTs are informed to
    implement the said Act and the Rules and the State
    Governments/UTs are directed to submit their quarterly
    report to the Central Supervisory Board. 

    Considering the amendment in the Act, in our
    view, it is the duty of the Union Government as well as
    the State Governments/UTs to implement the same as
    early as possible."


    F]    At the time of hearing, learned counsel for the petitioners
    submitted that appropriate directions including the steps which are
    required to be taken on the basis of PNDT Act and the suggestion as
    given in the written submission be issued. 

    On this aspect, learned counsel for the parties were heard.

        In view of the various directions issued by this Court, as quoted
    above, no further directions are required except that the directions
    issued by this Court on 4th May, 2001, 7th November, 2001, 11th
    December, 2001 and 31st March, 2003 should be complied with.   The
    Central Government / State Governments / UTs are further directed
    that:—

    a)    For effective implementation of the Act, information
    should be published by way of advertisements as well as
    on electronic media.  This process should be continued
    till there is awareness in public that there should not be
    any discrimination between male and female child.
    b)    Quarterly reports by the appropriate authority, which are
    submitted to the Supervisory Board should be
    consolidated and published annually for information of
    the public at large.
    c)    Appropriate authorities shall maintain the records of all
    the meetings of the Advisory Committees.
    d)    The National Monitoring and Inspection Committee
    constituted by the Central Government for conducting
    periodic inspection shall continue to function till the Act
    is effectively implemented.  The reports of this
    Committee be placed before the Central Supervisory
    Board and State Supervisory Board for any further
    action.
    e)    As provided under Rule 17(3), public would have access
    to the records maintained by different bodies constituted
    under the Act.
    f)    Central Supervisory Board would ensure that the
    following States appoint the State Supervisory Board as
    per the requirement of Section 16A.
    1.    Delhi        2.  Himachal Pradesh      3.  Tamil Nadu
    4.    Tripura        5.   Uttar Pradesh.

    g)    As per requirement of Section 17(3)(a), the Central
    Supervisory Board would ensure that the following States
    appoint the multi-member appropriate authorities:
    1.   Jharkhand    2.  Maharashtra    3.    Tripura   
        4.   Tamil Nadu    5.    Uttar Pradesh


        It will be open to the parties to approach this Court in case of
    any difficulty in implementing the aforesaid directions.

        The Writ Petition is disposed of accordingly. 

        In view of the aforesaid order, pending IAs have become
    infructuous and are disposed of accordingly.

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