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SPECIAL ISSUE - PC-PNDT  
Year : 2012  |  Volume : 22  |  Issue : 2  |  Page : 137-140
A perspective on the PCPNDT Act


1 Department of Forensic Medicine, M.I.M.S. Medical College, Nellimarla (Vizianagaram), Andhra Pradesh, India
2 Department of Radio-Diagnosis, M.I.M.S. Medical College, Nellimarla (Vizianagaram), Andhra Pradesh, India

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Date of Web Publication18-Sep-2012
 

   Abstract 

Background: An important modern diagnostic tool, used for monitoring pregnancy and genetic defects; the ultrasound machine, has also become a selective killer of the female child. The male child preference in India was responsible for female infanticides in the past. With easy availability and accessibility of USG, a shift has occurred from infanticide to feticide, although female infanticides still continue. In the process doctors are blamed as "merchants of death". Peeved and pressed by national and internal agencies for the declining female child ratio (0-6 years), the Government of India reacted by enacting a stringent PC-PNDT Act almost solely aimed at doctors to prevent them from advertising and disclosing the sex of the fetus to the pregnant woman or her relatives. Since the enactment, hundreds of cases have been launched against the doctors. Aims: 1. In order to stand up to the law important sections and rules of the PC-PNDT Act have been analyzed for the benefit of our colleagues. 2. The Indian legal system rests the "burden of proof" on the prosecution. In two sections of The Act, these have been done away with. Instead, the accused doctor has to prove himself innocent. Therefore a demand has been made to make suitable amendments to The Act in this regard. 3. The inclusion of column numbers 9-19 in the form 'F' is not relevant for USG clinics/ imaging centers; inaccurate filling of which may attract a prison sentence of 3 years. This irrelevance has to be deleted. 4. Some suggestions.

Keywords: Form-′F′, ′Burden of proof′, Imaging center, Ultrasound clinic

How to cite this article:
Patnaik A M, Kejriwal GS. A perspective on the PCPNDT Act. Indian J Radiol Imaging 2012;22:137-40

How to cite this URL:
Patnaik A M, Kejriwal GS. A perspective on the PCPNDT Act. Indian J Radiol Imaging [serial online] 2012 [cited 2019 Sep 21];22:137-40. Available from: http://www.ijri.org/text.asp?2012/22/2/137/101116

   Introduction Top


Doctors are considered men of noble profession. However, in recent times, they have also often been projected as "Merchants of Death". This has happened in spite of the fact that there is a revolutionary transformation of the health scenario in our country, mainly related to the fact that doctors often have been caught indulging in wrongful acts and these have been splashed in the media.


   The Genesis of the PC&PNDT Act- 1994 Top


Male child preference in the society.

Girls are considered to be a burden.

Easy availability of intra-uterine sex determination.

These are the reasons for female feticide that has supplanted the earlier practice of female infanticide.

The Government concerned with a 10% fall in girls at the all India level in the 0-6 years age group is determined to curb female feticides. Rights activists and organizations like UNICEF, UNDP, WHO are closely following and monitoring the increasing number of missing female children in India. The Government in its wisdom has created a stringent act, the PC&PNDT Act to curb the social evil of female feticide.


   The PC&PNDT Act - 1994 Top


At this stage, it would be pertinent to examine the basics of the Act and the consequences of violating the Act, advertently or inadvertently, either by acts of omission or commission. [1]

Some facts of The PC&PNDT Act

  1. Implementing and prosecuting authority.

    1. The appropriate authority (AA) at District, State and union Territory level
    2. Any officer authorized by the AA. Any officer authorized by the central / State Govt.
    3. Any person, which includes a social organization, who has given a notice of 15 days; of the alleged offence to AA and his intention to make a complaint in the court.
  2. Gravity of the offence
    1. Cognizable offence; on a complaint by the above authorities in the court of the judicial magistrate 1 st class/metropolitan magistrate; the magistrate takes cognizance of the case and charges are framed against the doctor concerned, for the violation of The Act.
    2. Non-bailable offence. No bail shall be granted to such an accused
    3. Offence non-compoundable: The case cannot be compromised without judicial proceedings.
  3. Nature of The Act
    1. The Act is essentially prohibitive in nature; prohibition of sex selection, determination, disclosure and advertisement.
    2. Record keeping in the revised form (F) and preservation of records for the mandatory period of 2 yrs or till final disposal of case (if a case is filed) in the above offences with regard to invasive or noninvasive procedures with an ultrasound machine on a pregnant mother.These issues are categorized in [Table 1].
    1. A host of minor offences.[Table 2] reflects the same Violations and Punishments under the PC&PNDT Act 1994.
Table 1: Major violations

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Table 2: Minor violations

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Having examined the intimidating penal provisions of The Act, we shall proceed to see the interpretation of The Act in its implementation as viewed by the learned judges of the Gujarat High Court in the following paragraphs. [3]

In a landmark judgment a three bench court of the Gujarat High court; consisting of Honorable Mr Justice M.S Shah, Honorable Mr Justice D.H Waghela and Honorable Mr Justice Akil Kureshi very clearly made the following pronouncement in criminal reference 3 and 4 of 2008; overruling the observations of a single judge bench in Dr. Manish C. Dave versus state of Gujarat (2008 (1) GLH 475).

  1. Under the provisions of section 28 of the PC&PNDT Act, a court can take cognizance of an offence under The Act on a complaint made by an officer authorized on that behalf by the AA.
  2. The proviso to sub-section (3) of section 4 of the PC&PNDT Act does not require that the complaint alleging inaccuracy or deficiency in maintaining record in the prescribed manner should also contain allegations of contravention of the provisions of section 5 or 6 of the PC&PNDT Act.
  3. In a case based upon allegation of deficiency or inaccuracy in maintenance of record in the prescribed manner as required under sub-section (3) of section 4 of the PC&PNDT Act, the burden to prove that there was contravention of the provisions of section 5 or 6 does not lie upon the prosecution.
  4. Deficiency or inaccuracy in filling form 'F' prescribed under Rule 9 of the rules made under the PC&PNDT Act, being a deficiency of inaccuracy in keeping record in the prescribed manner, is not a procedural lapse but an independent offence amounting to contravention of the provisions of section 5 or 6 of the PC&PNDT Act and has to be treated and tried accordingly. It does not, however, mean that each inaccuracy or deficiency in maintaining the requisite record may be as serious a violation of the provisions of section 5 or 6 of The Act and the court would be justified, while imposing punishment upon conviction, in taking a lenient view in cases of only technical, formal or insignificant lapses in filling up the forms. For example, not maintaining the record of conducting ultrasonography on a pregnant women at all or filling up incorrect particulars may be taken in all seriousness as if the provisions of section 5 or 6 were violated, but incomplete details of the full name and address of the pregnant women may be treated leniently if her identity and address were otherwise mentioned in a manner sufficient to identify and trace her.



   Discussion Top


Let us now see what happened in courts of law with regard to three heinous homicide cases that rocked the country in the recent past.

Burden of proof

  1. The Jessica Lal murder case: in a New Delhi restaurant, the bar tender was killed by gun fire in full view of 50 persons and yet the accused were set free in the 1st instance as the prosecution failed to establish the guilt against the accused. [4]
  2. The Arushi murder case, which occurred in the closed premises of residential quarters in the NCR (National Capital Region); was messed up by the Uttar Pradesh police and the Central Bureau of Investigation, i.e. the CBI which stepped in failed to file a charge sheet and instead preferred a petition to close the case for want of evidence.
  3. The Mumbai terrorist attacks of 26-11-2008; more than 166 citizens inclusive of foreigners were mercilessly butchered in cold blood, including three brave police officers. Some of these incidents were videographed and yet the amount of energy, time and money spent have been considerable, to prove the world that the sole surviving terrorist Ajmal Kasab, is indeed guilty.
The initial outcomes of the first two cases show that the evidence and burden of proof lies on the shoulders of the prosecution. We would like to ask, why in the PC&PNDT Act, the prosecution does not take up the issue of "Burden of Proof"? Why should the doctor be standing in the dock to prove his innocence? Why this step-motherly attitude towards doctors? We feel that the prosecution has to take the responsibility of taking the burden of proof {ref.no (iii) of the High court judgment}

Issue of the 'F' Form

We shall now analyze the relevance of columns no 9 to 19 of the mandatory form 'F' being filled by USG clinic/genetic clinic as well.

No 9 - History of genetic/medical disease

Basis of diagnosis - Biological, cytogenic etc.

No 10 - indications for prenatal diagnostic procedures - genetic

No 11 - invasive procedures performed

No 12 - any complaints there off

No 13 - genetic lab tests prescribed

No 14 - results

No 15 - date of procedures

No 16 - date on which consent obtained

No 17 - date of conveyance of results of prenatal diagnostic procedures

No 18 - MTP advised/conducted

No 19 - date on which MTP conducted.

Exhaustive information as above needs to be filled, and any deficiency or inaccuracy in filling these columns may land the doctor in jail.

What is conducted in an ultrasound clinic/imaging center?

The ultrasound clinics/imaging center in case of pregnant woman conduct only non-invasive ultrasound imaging, on being referred by an obstetrician. There would be no facilities for conducting obstetric examination, invasive procedures, or emergency evacuation. Needless to say, there is also no scope for advising any further genetic lab tests. A simple report regarding progress of the pregnancy/ labor / welfare of the fetus is furnished. If that is the case, is it not unreasonable that if we don't fill up all the columns (9 to 19) properly we may get into trouble? In all probability those who framed this form presumed that these prenatal diagnostics etc are carried out in these simple centers also. This is a fundamentally a wrong notion and therefore we demand that form 'F' should be modified for ultrasound clinics and imaging centers.

The progress of the PC&PNDT Act-1994

18 years into the Act with amendments in 2003, following is the progress of the implementation of the Act. [5] As cited in [Table 3] and [Table 4].
Table 3: Cases of Violation of PC, PNDT Act in the country as on 30.6.2010[6]

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Table 4: Doctors punished under PC&PNDT act in 2010[6]

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Cases of Violation of PC& PNDT Act in the country as on 30.6.2010.

In spite of the stringent law under implementation for the last 18 years and hundreds of prosecutions being launched and doctors being sent to jails there is no improvement in the child sex ratio in India and especially in high focus states, as per statistics provided below. [7]

Sex ratio of female child population in age group 0-6 years, 1981 to 2011 as cited in [Table 5].
Table 5: 0-6 yrs Child sex ratio showing declining no of female children

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The problem of missing female children in India is all-pervasive. The availability of ultrasonography on a large scale however is only from the mid 1990s, during which period the PC&PNDT Act has also been implemented. If 1991 is taken as base year, then the declining numbers of female children have further deteriorated over the years. Perhaps we need to search deeply for other remedies for this, essentially deep-rooted socio-economic evil of society.


   Conclusion Top


The Act has not made much headway. The results are disappointing. Other technologies are threatening to allow much earlier sex determination including a non-invasive blood test. [8]

This problem has its deep-seated roots in society and not just within the medical community. Sustained credible campaigns for saving the girl-child for prolonged periods are necessary.

On the official front, teams of Anganwadi workers, ASHA and female Health Workers should monitor every pregnancy till the end of pregnancy and these activities in turn should be carried forward to the Mandal, Block, Tehsil and District levels and so on. All pregnancies that do not end in birth should be thoroughly investigated to know the cause of pregnancy loss. The country at present has a sufficient pool of these workers and systems are in the place to carry forward this exercise.

SAVE THE GIRL CHILD!!

 
   References Top

1.The Act No.57 of 1994 Pre-Conception and Pre-Natal Diagnostic Techniques, (Prohibition of sex selection) and rules 1996 (regulation and prevention) as amended vide Act No. 14 of 2003 enacted by the Parliament of Republic of India.  Back to cited text no. 1
    
2.Information laid in Lok Sabha during 2011; SBS/Is release ID 77581. Judgment of Honorable High Court of Gujarat at Ahmadabad - CR. REF/420/2008, 5/24 and criminal references No.3 and 4 of 2008. Judgment dated 30/09/2008.  Back to cited text no. 2
    
3.Newspaper reports Deccan chronicle and Indian Express (Visakhapatnam edition) and TV channels from time to time.  Back to cited text no. 3
    
4.HMIS for NRHM as on November 2010 and HMIS Rch reports accessed on 23rd November 2010 reflected in Annual report 2010/11; Ministry of Health and Family Welfare, Govt. of India.  Back to cited text no. 4
    
5.Answer of Sri. Ghulam Nabi Azad, Honorable Minister of Health and Family Welfare, Govt. of India with reference to a Parliamentary question put by Honorable nominated member Sri. H.K. Dua; in the Rajya Sabha on Thursday the 4th August 2011.  Back to cited text no. 5
    
6.Janaki Ramaiah G, Chandrashekar T, Vinayaka Murthy P. Table on child sex ratio in the 0-6 age group (1981-2011). Asia Pac J Soc Sci 2011;3:183-98.  Back to cited text no. 6
    
7.Mee RH, Gerald W. Study published in the FASEB (Federation of American Societies for Experimental Biology) - Friday, January 20, 2012.  Back to cited text no. 7
    
8.Ryu HM, Weissmann G. Study published in the FASEB (Federation of American Societies for experimental Biology) Friday, January 20, 2012.  Back to cited text no. 8
    

Top
Correspondence Address:
Gouri Shankar Kejriwal
Department of Radio-Diagnosis, M.I.M.S. Medical College, Nellimarla-535 217 (Vizianagaram), Andhra Pradesh
India
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Source of Support: None, Conflict of Interest: None


DOI: 10.4103/0971-3026.101116

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    Tables

  [Table 1], [Table 2], [Table 3], [Table 4], [Table 5]



 

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    Abstract
   Introduction
    The Genesis of t...
    The PC&PNDT ...
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