Discrimination against women, especially against the girl child, is widespread in several parts of the country and female foeticide is a crude manifestation of this social ill, the Supreme Court said on Monday.
A bench of Justices Manoj Misra and Ujjal Bhuiyan refused to quash the case against the Gurugram-based radiologist for offenses under the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) (PCPNDT) Act, 1994, and said it could not nip the trial against him in the bud.
“Discrimination against the girl child, and therefore against women, continues to prevail in several parts of the country. The crude and ugly manifestation of this social malady is female foeticide. The first step towards committing such a crime is to determine the sex of the fetus,” the bench said.
She added that Parliament intervened not only to ban sex determination and selection, but also to ban all pre-conception and pre-natal techniques and procedures, making it mandatory to keep the relevant record in the prescribed form.
“Failure to maintain the record in the prescribed format would amount to an offense under the PCPNDT Act and Rules. So far, so far as the present case is concerned, prima facie, it has been brought on record that the appellant had performed an ultrasound scan on the pregnant woman.”
“Whether or not he has maintained the register as required under law, as well as not disclosing the sex of the fetus, is a matter for trial. Therefore, it is not an issue that should nip the trial in the bud,” the bench said.
She refused to interfere in the order of the Punjab and Haryana High Court and said that the case pending before the Judicial Magistrate in Gurugram could not be quashed.
“Therefore, there is no need to interfere with the impugned judgment and order of the Supreme Court. However, we clarify that we have not expressed any opinion on the merits of the allegations and all allegations regarding the reliability and admissibility of the evidence remain open,” the apex court said.
However, it found fault in the procedure followed in the raid conducted against the radiologist and said that the civil surgeon is the head of the district competent authority under the PCPNDT Act but the letter issued by him does not indicate any decision being taken collectively by the authority to conduct a raid on the premises of the appellant Naresh Kumar Garg.
“Nothing has been recorded by the respondents to show that there was any mental meeting of the members of the competent authority of the area on the basis of which the President issued the communication/order dated 17 September 2015.
“If that were the position, the ratio in Ravindra Kumar (earlier judgment) would be applicable to this case as well, on the basis of which the search conducted by the district competent authority, Gurugram, at Vatika Medicare, i.e. the premises where the appellant was working, would be illegal…” the bench said.
She said the PCPNDT Act of 1994 was enacted to prohibit sex selection, which leads to female foeticide, and aims to arrest the declining sex ratio in the country.
“The objectives of the PCPNDT Act declare that the said law provides for the prohibition of sex selection of the fetus, before or after pregnancy, and to regulate prenatal diagnostic techniques to prevent their misuse for sex determination, leading to female foeticide, and for matters connected therewith or incidental thereto,” she said.
Explaining the objective of the law, the court said that a skewed gender ratio is likely to lead to increased incidents of violence against women and an increase in practices of trafficking, bride buying, etc.
“It is an effort to save the girl child. The focus of the PCPNDT Act is to protect the right of the girl child to life under Article 21 of the Constitution of India,” the bench said, adding that the law was enacted with an aim to prevent such crime and align with the global perspective of a world free of discrimination.
