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Under

Let Girls Be Born Project

State Level Orientation Workshop of Chief Judicial Magistrates

on Declining Child Sex Ratio & PCPNDT Act

in Uttar Pradesh

With the kind support of

Honble High Court of Judicature at Allahabad

UP State Legal Services Authority

Institute of Judicial Training & Research, UP

Plan India

2nd December, 2012

Institute of Judicial Training & Research,

Vineet Khand, Gomti Nagar,

Lucknow

( )

(Plan India) (UPSLSA) (Vatsalya, Lucknow)

CONTENTS

S.NO.

SUBJECT

PAGE

01

Background

3

02

Objective of the Workshop

4

03

Efforts Expended to Organise the Workshop

5

04

Agenda of the Workshop

7

04

Inaugural Session

9

05

Working Session I

14

06

Working Session II

18

07

Valedictory Session

24

08

Our Resource Persons

26

09

Annexure: Case Studies

27

BACKGROUND

T

he birth of a child signifies the dawn of humanity or civilization which is a rich source of new prospects for our society. But ironically the girl child in reference to the Indian context has always been connoted & served with unequal proportions pertaining to her most fundamental rights & of course the right to born without any discrimination, biasness or favouritism which comes first in the line. Though many decades back the unwanted girl child was put to death right after the birth & confused with the still births. But with the changing time the architects behind the scene have changed which can be observed in formation of a strong coalition of Patriarchal society & abuse of pre natal diagnostic techniques.

The Parliament in its wisdom enacted the Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994. The noble object behind the enactment of PC PNDT Act was to implement in full letter & spirit a legislation to ban the use of pre conception sex selection techniques and misuse of such techniques for the purpose of prenatal sex determination leading to female foeticide and for matters connected therewith, but the STATUS QUO still remains the same, unfortunate & ill in its implementation at all the peripheries of national, state & district level especially in Uttar Pradesh.

With the inception and further advancement of the health care industry (thanks to the phenomenon of Globalization, Economic liberalization & Consumerism) in India, we cleverly started utilizing the art of technologies to fulfil the need for male preference- on the name of culture, religion, population stabilization and in providing the social services to the couples in sex selective elimination, who have accessibility to it.

Visioning the destructive roles the pre natal diagnostic techniques can cause the former came into its basis in 1996 and got amended into PC PNDT Act on 14th February 2003. But with time the child sex ratio of Uttar Pradesh felled by 17 points in Census 2011. As expected and much awaited the sex ratio at birth (AHS 2010-11) in which the urban UP observed the ratio of 873 while rural UP followed the trail and observe the same of 911 per 1000 boys born. Contrary the total sex ratio at birth of Uttar Pradesh came out to be more skewed than the latter and stood at 904.

OBJECTIVE OF THE WORKSHOP

In an encapsulated manner, the objective of the workshop was to catch the attention of judiciary on the ground realities pertaining to declining Sex Ratio & implementation of PCPNDT Act in Uttar Pradesh, which could correspondingly expedite in implementation of the law in the state, following punitive actions taken albeit cognizance for the contravention of the provisions of the Act or rules, which is actually the need of the hour, strengthening the PCPNDT Act.

Bringing together the judicial authorities authorized under the PCPNDT Act on a common forum and sharing of experiences by higher judicial officers and national level Resource Persons pertaining to their trysts and struggles related to the issue of female foeticide and the implementation of the PCPNDT Act would certainly aid in creating a holistic understanding of the invitees on the Act itself and in the problems being faced while implementing it.

EFFORTS EXPENDED TO ORGANISE THE WORKSHOP

Vatsalya, with the kind guidance of Honble High Court of Judicature at Allahabad, Uttar Pradesh State Legal Services Authority, National Rural Health Mission, Uttar Pradesh and with the support of Plan India had conducted a successful Workshop with Chief Judicial Magistrates of 32 districts of Uttar Pradesh on the issue of declining Child Sex Ratio & Status of implementation of PCPNDT Act in Hotel Dayal Paradise, Lucknow on 12th August, 2012. The Workshops successful conclusion had instilled in us the belief that another Workshop of the same magnitude addressing the Chief Judicial Magistrates of the remaining districts of the State would be an achievable endeavour.

True to our belief, we have been able to conduct the 2nd batch of Orientation Workshop for Chief Judicial Magistrates but not without constant hard work, not only on the part of Vatsalya as a team, but also on the part of Uttar Pradesh State Legal Services Authority and the Institute of Judicial Training & Research, Lucknow. Without the constant support and guidance of these two organisations, this Workshop would not have been possible.

To conduct & organize such a herculean event in Uttar Pradesh with one of the MOST significant stakeholders and ensuring a standard at par with what was achieved during the preceding Workshop, a lot of liaising & advocacy efforts were put in by the organization which needs to be acknowledged.

a) An application of request was forwarded to Mr. P.K. Goel (Member Secretary UPSLSA) in reference to the 2nd batch of State level Workshop of CJMs in UP. The initiative and the need of the proposed event (looking onto the declining Child Sex Ratio and dismal state of affairs of implementation of PC PNDT Act in UP) which had already been shared with him was the driving force behind the Workshop, a sentiment which he shared with Vatsalya. The organization also appealed to forward the request to the Honble High Court so that a direct order from the same could be redeemed so as to mobilize the Chief Judicial Magistrates & their follow up too could be ascertained.

b) Following the above procedure, the Honble High Court passed an order stating the CJMs of 41 districts to kindly and actively participate in the aforementioned event.

c) The contact list of 41 CJMs was acquired from UPSLSA from where the home work of Vatsalya started.

d) To grace the event and share his wisdom on the grave issue of concern, Vatsalyas Chief Functionary met Honble Mr. Justice Uma Nath Singh, Senior Judge, Honble High Court of Judicature at Allahabad, Lucknow Bench to receive his assent to be the Chief Guest for the proposed event and to inaugurate it as well. Correspondingly Honble Mr. Justice Bhanwar Singh, Chairman, Institute of Judicial Training & Research, Lucknow was also pursued and invited to be the Guest of Honour.

e) A letter of invitation was humbly forwarded to Mr. S.M. Haseeb, Special Secretary (Law) & State Appropriate Authority, Uttar Pradesh so as to bring in open the state of PNDT in UP as a panelist and share his experience .

f) For the resource material, it was a kind gesture of UNFPA to share, more than 50 books on compilation & analysis of cases on PCPNDT Act, which was given to all the invitees so that they can be used sufficiently as a tool for future reference.

g) Cordial invitations were extended to Dr. Sabu George, National Activist & Member of National Inspection & Monitoring Committee and Mr. Uday Warunjikar, Advocate, High Court Mumbai, who readily agreed to participate in the Workshop as National level Resource Persons and to share with the invitees their experience of several years of working against the practice of female foeticide and for the improvement in implementation of the PCPNDT Act across the nation.

h) Generous amount of time was provided by UPSLSA towards accomplishing the event successfully, like outlining of the agenda & framework of the event, in making us understand the protocol of the judiciary officials and facilitation at every step wherever needed by the organization.

i) Special effort was made by the Institute of Judicial Training & Research, Lucknow who extended to us the courtesy of extensive usage of their infrastructure and premises for the Workshop and also supported and guided us in ensuring that the Workshop was conducted without a hitch while adhering to the necessary protocol.

AGENDA OF THE WORKSHOP

9:00 10:00 hrs (Registration & Breakfast)

INAUGURAL SESSION (10:00 11:20 hrs)

10:00 to 10:10 hrs

Welcome Address

Dr. Neelam Singh, Chief Functionary, Vatsalya & Member of Central Supervisory Board & National Inspection & Monitoring Committee

10:10 to 10:20 hrs

Lighting of Lamp & Floral Welcome

10:20 to 10:30 hrs

Opening remarks & objective of the workshop

Mr. Pramod Kumar Goel, Member Secretary, UPSLSA

10:30 to 11:00 hrs

Declining Child Sex Ratio in India in particular reference to UP

Dr. Sabu George, National Activist, Member of National Inspection & Monitoring Committee

11:00 to 11:15 hrs

Key note address

Honble Mr. Justice U.N. Singh, Senior Judge, Honble High Court of Judicature at Allahabad, Lucknow Bench

11:15 to 11:20 hrs

Vote of Thanks

Mr. Rajeev Maheshwaram,

Ad. Secretary, UPSLSA

Tea Break 11:20 11:45 hrs

WORKING SESSION I (11:45 13:30 hrs)

Topic: Status of Implementation of PCPNDT & exploring possibilities

Chairperson

Mr. P.K. Goel, Member Secretary, UPSLSA

Time

Subjects

Panelists

1. Status of PCPNDT Implementation in the state

Dr. Neelam Singh, Chief Functionary, Vatsalya & Member of Central Supervisory Board & National Inspection & Monitoring Committee

20 Min

2. Understanding PC PNDT Act

Implementing Authorities

Violations

Punishments

Recent amendments

Advocate Uday Warunjikar, High Court, Mumbai, Maharashtra

40 Min

3. Experiences: Implementation of PCPNDT Act as Appropriate Authority

Dr. Sabu George, National Activist, Member of National Inspection & Monitoring Committee

20 Min

Open Session

25 Min

Lunch: 13:30 to 14:15 hrs

WORKING SESSION II (14:15 16:00 hrs)

Topic: Salient features of PCPNDT Act & Galvanization action through Judiciary

Chairperson

Honble Mr. Justice Bhanwar Singh, Chairman, IJTR, Lucknow

Co-Chairperson

Mr. S.M. Haseeb, Special Secretary (Law) & State Appropriate Authority, PNDT

Facilitators

Mr. Rajeev Maheshwaram

Mr. Uday Warunjikar

Dr. Neelam Singh

Dr. Vaibhav Pathak

Participants divided into 4 Working Groups

Group 1

Group 2

Group 3

Group 4

Non-registration

Decoy Operation

Advertisement

Incompetent person operating

Advertisement

Non-registration

Non-maintenance of Records

Multiple violations

Presentation by each working group

Time

Group 1

10 min

Group 2

10 min

Group 3

10 min

Group 4

10 min

Address by Chairperson

5 min

Tea Break 16:00 16:30 hrs

VALEDICTORY SESSION (16:30- 16:50 hrs)

Summing up

Mr. Rajeev Maheshwaram, Deputy Secretary, UPSLSA

10 Min

Valedictory Address

5 Min

Vote of Thanks

Dr. Neelam Singh, Member of CSB & NIMC

5 Min

National Anthem

INAUGURAL SESSION

Welcome Address:

Dr. Neelam Singh expressed her gratitude to the Chief Guest, Honble Mr. Justice U.N. Singh, Senior Judge, High Court of Judicature at Allahabad, Lucknow Bench for gracing the Workshop with his kind presence. She also welcomed Mr. P.K. Goel, Member Secretary, UPSLSA and Dr. Sabu George, Member of NIMC for taking out time from their hectic schedules and being an integral part of the Workshop. She welcomed all the CJMs and thanked them for their participation in the Workshop.

(From L to R (Ms. Debjani Khan, Dr. Neelam)Lighting of the lamp:

Lightening an oil lamp refers to the light of higher knowledge dispelling all ignorance & awakening the compassion and quest for knowledge. To do the needful Honble Mr. Justice U.N. Singh; Mr. Pramod Kr. Goel (Member secretary- UPSLSA) & Dr. Neelam

(Honble Mr. Justice U.N. Singh lighting the lamp)Singh (Chief Functionary, Vatsalya & Member

CSB & NIMC) were requested to light the oil lamp. Following this ceremony, the inaugural session started with the opening remarks by Mr. P.K. Goel (Member Secretary- UPSLSA).

Opening remarks: Address by P.K. Goel (Member Secretary- UPSLSA)

Mr. Goel shared with the participants that in 1964 Pregnant women were losing their lives due to medical complications since abortions were not lawful. Hence, this problem was addressed by enacting the MTP Act in 1972. However, two problems surfaced after this Act was passed; Firstly, abortions would increase in number; and secondly, that sex selective eliminations of pregnancy would increase. This second problem has now taken massive proportions and Sex Ratio in the country has become extremely skewed.

In 1975- Abortion was legalised in France. Public awareness and exercise of their legal rights has enabled French women to enjoy the benefits of this legalisation. However, this legalisation was not reaping similar benefits in India. It was being grossly abused by factors like superstitions, age-old customs, among others.

( Mr. P.K. Goel giving the opening remarks)He clarified that no religion insults women or provides for any stipulation which allows sex selective abortions.

He gave examples of Hinduism and Islam,

two major religions of the country to prove his point.

Thus, in 1994, the Indian Govt. enacted the PCPNDT Act to regulate techniques which enable sex determination and prohibit and prevent sex determination.

Role of judiciary: Although the administration is responsible for the implementation of the Act, it is the judiciary which has to ensure quick and fair justice so as to get across a positive message to the public. The Constitution bestows the responsibility of legal awareness and literacy on the judiciary regarding the law in the country. Hence, it is essential that the CJMs ensure that public awareness campaigns addressing the stakeholders related to this issue are conducted in their respective districts so as to make them aware of their roles and responsibilities.

Declining Child Sex Ratio in India with particular reference to Uttar Pradesh: Address by Dr. Sabu George (National Activist & Member of NIMC)

Dr. George expressed the view that this Act has been able to take its true shape only because of the Supreme Court. This crime of female foeticide is a highly organised crime, one which can be compared with the genocide in Germany in which millions of Jews were gassed. The consequences are frighteningly visible in rural UP.

(Dr. Sabu George addressing the participants)Population stabilisation/control techniques became popular during the mid-70s across the globe. Especially in China, where the government encouraged the sex selective abortions of female foeticides which implementation of their one-child policy which in effect was the one male child policy.

Beginning from Western UP (Shahjahanpur), this menace of sex determination and elimination of female foetuses has spread to Central and Eastern UP. This has become a booming business for the medical fraternity in both rural and urban areas of the state. Unless there is judicial intervention and legal deterrence, there is no hope of Sex Ratio stabilising or improving. In the next decade, if the current situation continues, UPs Sex Ratio will be worse than that of Punjab and Haryana. In Uttarakhand, known as Dev Bhoomi, the situation is no better. Even in Kerala, where for decades together the Sex Ratio was one of the best according to the Census, Sex Ratio has now become to decline. All communities, religions, castes are participative in this process of sex determination and female foeticide. No economic barrier, no religious barrier is enough to stem the flow of this menace.

This practice is not constrained to India alone but has also been seen in European countries as well. But the focus is on India because the situation is frighteningly dismal here. The economic boom in the country also is another reason for the intense focus on India.

The poorest of the poor in rural India are unable to marry, or buy females, hence, polyandry, criminal violence against women, and a struggle for survival for women has taken root in the rural sector of the country. The situation is no better in the urban areas, where for different reasons, this practice is prevalent.

Dr. George then presented statistical data regarding the Sex Ratio and its decline across the state.

Dr. Neelam Singh, Chief Functionary, Vatsalya & Member of CSB & NIMC: The decline in SR in UP is greater than the rate of decline across the country. Through the slides being presented, it is clearly visible that the hubs of sex determination have travelled to the poorer, less developed districts of UP; like Bundelkhand and Poorvanchal. Districts like Hardoi, Ballia and Siddharth Nagar have shown the maximum decline in Child Sex Ratio and 332 girls are disappearing across the state on a daily basis.

Key note address: by Lordship Honble Mr. Justice U.N. Singh (Senior Judge) Lucknow Bench of Honble Allahabad High Court (UP) & the Chief Guest of the Workshop

Kinship, marriage, family are closely related terms, both anthropologically and sociologically. Religious scriptures like Ramcharitra Manas are often read and followed in homes and families. All these scriptures bestow only the highest status on women. Festivals like Navratris, Durga Pooja etc. are indicative of this status and respect accorded to women in society and family. Wives and mothers are like bricks and stones, without whom a home is incomplete.

In todays globalisation era, it is difficult to understand why we cant find a global solution to this problem of female foeticide and sex determination. In Western countries, it has been found that there is a sharp decline in fertility and increase in mortality. However, in India there has been a sharp decline in Sex Ratio which is a matter of serious concerns. As CJMs, the participants have been called upon to ensure that at least at the judicial level, this problem is tackled effectively.

Maharashtra was the pioneer in the field of tackling this problem out of which the PCPNDT Act, 1994 took final shape. He described the Act in brief and stated that the Appropriate Authority is the backbone of the Act. He emphasised on the need for joint meetings between the AAs and the judiciary to enable effective implementation of the Act. State Govts. Should ensure that officers who have ample time to spare should be appointed for implementation of the Act instead of medical and other officers who have many responsibilities to look after or are tangled up in various scams and scandals.

(Honble Mr. Justice U.N. Singh delivering the key note address)Looking to the seriousness of the problem, the offence has been made cognizable, non-compoundable and non-bailable but still we have not been able to implement the Act with efficacy. Only 56 cases have been filed in the state under PCPNDT Act even though 332 girls are missing in the state every day. This clearly

shows that cases are not reaching the courts. It is imperative that AAs take a closer look at the way the Act is being implemented at their level and ensure that cases are filed in courts. Lack of cases being filed in courts leads to lack of highlighting of this issue in judicial forums.

He shared the information that despite conducting various programmes on women empowerment and development, women remain a weak section of society. The Constitution provides for protective discrimination for women and gives preferential treatment to women but despite this noble effort of the law makers, female foeticide is a prevalent menace in the country. Widow Remarriage Act, Hindu Marriage Act, Special Marriage Act, Hindu Succession Act, Child Marriage Restraint Act, Dowry Prohibition Act, etc. were enacted by the law makers to ensure that the sting of alien treatment given to women in society is blunted. Recent enactments related to domestic violence and sexual harassment in the workplace have also taken shape. However, unless the problem is tackled and understood at home, it cannot be solved. To make this issue a national one, it is essential to invite religious leaders on a common platform or forum to ensure that they address the issue with utmost seriousness.

SLSA should ensure that the various stakeholders are addressed regarding this issue and that they are sensitised. Jail inmates, school and college students, etc. should be addressed so that this problem is taken seriously and awareness on the issue is widespread and the problem highlighted.

It is everyones personal responsibility to ensure that this issue is tackled and curtailed.

Vote of thanks: Address by Mr. Rajeev Maheshwaram (Ad. Secretary, UPSLSA)

Vote of thanks to the Chief Guest, panelists and participants to the Workshop was conveyed. This Workshop has a special meaning because of the deep concern showed by Honble Lordship and his emotive and deep understanding on the issue. There is no dearth of laws in our country which have taken special initiatives in protecting women and upholding their rights and improving their status in society. It was rightly pointed out by His Lordship that there has to be a collaborative effort to ensure effective implementation of social legislations like PCPNDT Act.

(Mr. Rajeev Maheshwaram delivering the vote of thanks)Mr. Goel, who has been a moving force on this issue, was also thanked profusely because it is under his leadership that UPSLSA has developed the belief that sensitisation on the issue is a necessary requisite.

Dr. Neelam Singh is now closely linked with UPSLSA and IJTR on this issue as well as other issues and is also responsible for training judicial officers on issues related to the girl child. She has single handedly taken on the mantle of this issue. Our philosophy is now not do you believe in life after death but do you believe in life before death. IJTR also has to be thanked for their constant endeavours and valuable suggestions while organising this Workshop. Also, the CJMs should be thanked and lauded for being present in this Workshop and for being an important part of the process that we intend to initiate against this problem. This organised crime which should have been nipped in the bud but has now become a menace, should be stopped and the girl child should be protected at all costs.

WORKING SESSION I

STATUS OF IMPLEMENTATION OF PCPNDT ACT

& EXPLORING POSSIBILITIES

CHAIRPERSON

Mr. P.K. Goel, Member Secretary, UPSLSA

PANELISTS

Mr. Uday Warunjikar, Advocate, High Court, Mumbai

Dr. Sabu George, National Activist & Member of NIMC

Dr. Neelam Singh, Chief Functionary & Member of CSB & NIMC

Address by Chairperson: Mr. P.K. Goel (Member Secretary, UPSLSA)

Only 56 cases have been filed under PCPNDT Act and this clearly shows the dismal state of implementation of the Act in UP. Generation of legal literacy and awareness are the need of the hour to ensure effective implementation of the Act. Involvement of AAs is also essential for this endeavour as they form the backbone of this Act.

MTP Act ensures that the pregnant woman is able to abort a pregnancy which endangers her life, or that an unmarried woman/rape victim is able to escape social stigma attached to the birth of her unborn child by aborting her pregnancy whereas the PCPNDT Act ensures that techniques which are capable of sex determination are regulated so that sex selective eliminations of pregnancies is stopped.

Factors behind female foeticide: Customs which dictate that the birth of a son is essential for the extension of the family line, patriarchy, son preference, daughter abhorrence, dowry practice.

(Mr. P.K. Goel addressing the participants)

Understanding PCPNDT Act: Address by Mr. Uday Warunjikar (Advocate, High Court, Mumbai)

Mr. Warunjikar explained the provisions of the PCPNDT Act in brief. He also informed the participants about the improved technology available in society today which also enables families to construct designer babies. He also asked the participants to name any legislation which provides both for the regulation of a technique and also for prohibition of a crime. He said that this Act was unique in that it provided for regulatory, prohibitory as well as preventive provisions.

The technique itself, science itself, is not to be blamed for this menace just like a matchstick which is used to light a lamp can also be used for setting a woman on fire. Thus, regulation of the use of technique is essential for ensuring that the crime of female foeticide is stopped.

This Act is not a legislation addressing only women. Section 3 clearly prohibits sex selection on a man or a woman, thus making PCPNDT Act a gender-neutral law.

(Mr. Uday Warunjikar explaining the PCPNDT Act)Sec 3A prohibits pre-conception sex selection, Sec 3B prohibits sale of UGS machines to unregistered clinics/centres, etc., Sex 5(2) prohibits communication of the sex of the foetus to anyone by any means whatsoever, and Sex 6 prohibits pre-natal (post-conception) sex determination. Sec 22 prohibits advertisement related

to Pre-Conception & Pre-Natal determination/selection of sex. This section becomes even more important given the vacuum in legislation exclusively pertaining to advertisements and their regulations. He shared the terms surrogacy, medical tourism etc. to highlight the impact of the internet which has made our world a global village.

He shared his experience related to a publication in Marathi titled The child you desire which gave incorrect information to the public. He also shared various permutations and combinations of different Acts like PCPNDT + Dowry Prohibition/ PCPNDT + Domestic Violence which will ensure that the objectives of these Acts are achieved with greater veracity. The competence of the prosecutor should be hiked to rival with the ingenuity of the defence lawyer.

Section 5 constitutes a restriction on the freedom of speech enshrined in Article 19 of the Constitution.

Moving on to AAs, he explained why the medical fraternity/officers are not given the responsibility of being an AA.

Section 5(1) provides regulation for the conduct of PCPNDTs (information of side effects, after effects of USG to the pregnant woman, written consent of the patient in the language she understands, copy of this written consent given to the pregnant woman)

It being a document-based offence coupled with the presumption of offence having been committed under the Evidence Act makes this offence easy to prove.

The offence under this Act can be equated with murder of a child because according to the Hindu Succession Act the unborn child is a legal entity enjoying legal rights to property. Thus, the aborting of a girl child inside the womb can be compared to the murder of a girl child. Then the question that arises is why the maximum punishment available under the Act remains only imprisonment for a period up to 5 years.

The law makers realised that the offenders under the Act would be white-collar criminals so the deterrent theory of punishment is applied so as to ensure the strictest punishment to those who have been convicted under the Act.

Section 24 presumes the innocence of the pregnant woman who undergoes USG procedure/test

The offence has been made a non-compoundable offence to ensure that out of court settlements are not possible with respect to offences under this Act.

He went on to explain the social consequences of the decline in Sex Ratio. He explained that instances of criminal violence against women would increase due to this decline and social unrest would be created. Thus, this legislation is for our daughters, our mothers, our wives and our sisters.

Status of implementation of PCPNDT Act in the state: Address by Dr. Neelam Singh (Chief Functionary, Vatsalya & Member of CSB & NIMC)

Presented a status report regarding the implementation of PCPNDT Act in UP. She shared with the participants the information relating to the statutory mechanisms under the Act, their constitution, their roles and responsibilities and their meetings.

She then went on to share the figures related to centres/clinics/laboratories operating in the state out of which nearly 95% were USCs, the qualification status of persons operating USG machines out of which nearly half were such whose qualifications were not available with the govt. machinery. She shared her experience during inspection visits where graduates, high school passed students, etc. were conducting USG procedure/test when this is prohibited by law (Dr. Neelam Singh addressing the participants)

Maintenance and preservation of records is also not 100% in any district across the state (including Form H).

(Dr. Neelam Singh addressing the participants) (Dr. Neelam Singh addressing the participants) (Dr. Neelam Singh addressing the participants) (Dr. Neelam Singh addressing the participants) (Dr. Neelam Singh addressing the participants)

WORKING SESSION II

SALIENT FEATURES OF PC PNDT ACT & GALVANIZING ACTION THROUGH JUDICIARY

CHAIRPERSON

Honble Mr. Justice Bhanwar Singh, Chairman, Institute of Judicial Training & Research, Uttar Pradesh

CO-CHAIRPERSON

Mr. S.M Haseeb, Special Secretary (Law) & State Appropriate Authority, Uttar Pradesh

FACILITATORS FOR GROUP WORK

Mr. Rajeev Maheshwaram, Ad. Secretary, UPSLSA


Dr. Neelam Singh, Chief Functionary, Vatsalya & Member of CSB & NIMC

Dr. Vaibhav Pathak, Vatsalya

Address by Chairperson: Honble Mr. Justice Bhanwar Singh (Chairman, IJTR)

He talked about the PCPNDT Act and the role of the Judiciary in implementing the Act. He agreed that a lot of work on the Act was yet to be done and that countless complaints regarding sex determination surface on a daily basis but these complaints do not culminate into legal proceedings.

He said that this Act could be considered to be a welfare Act mostly focussing on the rights of the unborn child. He insisted that gender discrimination was not only a national issue but one of global proportions. He gave the example of England where till the last century, womens rights were not a matter of any concern and the female population couldnt enjoy the rights that were afforded to them in all spheres.

(Honble Mr. Justice Bhanwar Singh addressing the participants)He said that awareness generation for society at large was an essential requisite for tackling the menace of female foeticide and for stabilising the skewed Sex Ratio in the country. The deterrent theory of punishment hasnt been able to achieve the results that were expected of it because of the very nature of humans of challenging the established rules and procedures and of dare-devilry.

If one wants to give birth to a male child only, then no legal provision or administrative diktat would be able to stop them. Thus, deterrent theory has failed to deter the citizens from committing acts specified as offences by law.

He said that had it not been for the Honble Supreme Court, we would not have been in a position to even discuss this Act and it would not have been implemented even to the extent that it has been presently.

Group Work Exercise

Objective: This Session of the Workshop was conducted for the purpose of ensuring active participation and developing concise understanding of the participants on the intricacies of the PCPNDT Act.

Process: Working Session II was divided into two sessions: The first (1 hour) during which the participants were given time to analyse and discuss the case studies given to them & give their observations on a specific set of questions. This was followed by a presentation session during which each group was allotted 10 minutes for presenting their case studies.

The participants were divided into four Working Groups (constituted district-wise in alphabetical order of the name of the district) of ten each and two case studies were given to each Working Group. Each Working Group shall be aided by a facilitator who shall provide the participants with any support that may be required. The case studies are imaginatively based on field experiences of inspections and sets of facts related to the provisions of the PCPNDT Act & Rules as specified in the table below:

GROUP 1

GROUP 2

GROUP 3

GROUP4

Non-Registration

Decoy Operation

Advertisement

Incompetent Person Operating

Advertisement

Non-Registration

Non-Maintenance of Records

Multiple Violations

DISTRICT-WISE COMPOSITION OF WORKING GROUPS

Agra

Basti

Gorakhpur

Mirzapur

Aligarh

Bijnaur

Hamirpur

Pilibhit

Allahabad

Chitrakut

Hathras

Rai Bareli

Auraiya

Deoriya

Jalaun

Rampur

Azamgarh

Etah

Kannauj

Sant Kabir Nagar

Badohi

Etawah

Kanpur Dehat (Ramabai Nagar)

Shrawasti

Bahraich

Faizabad

Kanshi Ram Nagar

Sitapur

Balrampur

GB Nagar

Lalitpur

Sonbhadra

Banda

Ghazipur

Mahoba

Unnao

Barabanki

Gonda

Mau

FACILITATORS FOR EACH WORKING GROUP

Mr. Rajeev Maheshwaram, Ad. Secretary, UPSLSA


Dr. Neelam Singh, Chief Functionary, Vatsalya & Member of CSB & NIMC

Dr. Vaibhav Pathak, Vatsalya

Each Group was required to analyse and understand the case studies and provide observations in response to a set of questions that follows based on legal understanding of the PCPNDT Act. This reasoning was to be shared by the Groups at the end of an hours time during their presentations. For this exercise, each Working Group was to nominate from among its member participants at the beginning of the session, a presenter who shall represent them during this exercise. Time allotted for presentations per Working Group was to be ten minutes.

Group 1 Represented by Mr. S.N. Singh (CJM, Azamgarh)

View of the Presenter: Mr. Singh shared with the participants that private persons are allowed to file a complaint and institute proceedings under Sec 28 of PCPNDT Act after fulfilling statutory requirements. He pointed out that operating a USG centre unregistered was an offence under Sec 3 of the Act and punishable under Sec 23. The USC owners & operators would be prosecuted in this case. In the second case study, Mr. Singh pointed out that any advertisement pertaining to pre-natal or pre-conception sex selection or determination was punishable under Sec 22 of the Act and the publishers, owners of offending centre/clinic and the operators or employees would be prosecuted against. Photographic evidence of the advertisement and any materials seized from such centre would be evidences to strengthen the case in court.

View of the Panelists: Mr. S.M. Haseeb, Special Secretary, Law & State Appropriate Authority shared his experience of complaining to the DM regarding advertisement (Shartiya Ladka) in Dainik Jagran [Bareilly & Kaushambi- complaints have been registered in this case].

Group 2 Represented by Mr. Vipin Kumar (CJM, GB Nagar) & Mr. Chandra Bhanu Singh (CJM, Gonda)

View of the Presenters: Mr. Kumar informed the participants that conducting decoy operations was permissible under Indian Evidence Act, 1973 and that in the instant case, Sec 5(2), Sec 29 & Rule 9 had been violated which were punishable under Sec 23 of the Act.

Mr. Chandra Bhanu Singh, with respect to Case Study 2, informed the participants that if a complaint under Sec 28(1) (b) is filed by a private person after complying with the procedure under the abovementioned section, the Appropriate Authority can be summoned by the Court, along with relevant documents, before the Court. He said that Sec 3, Rules 9 & 17 had been violated in the instant case and that the owner of the USG centre and his employees would be prosecuted against.

View of the Panelists: Mr. Sabu George: The Act is very strongly framed and the only question that remains is if the evidence has been presented in the correct format and if it has not been tampered with. SD Clinics are not a closely guarded secret but are part of an open knowledge network in society.

Mr. Uday Warunjikar: CJMs are responsible, if the case is filed under Sec 28 (1) (b) (private person complaint), to order the AA to furnish all records and present them before the Court. Appeal against cancellation of registration and criminal case filed under Sec 28 (Two remedies available for a single offence) run independently from each other.

Dr. Neelam Singh: This is a factual case and not an imaginary one (CSM Nagar) and is still stagnant without any action having been taken.

Group 3 Represented by Mr. Shailendra Pandey (CJM, Mahoba)

View of the Presenter: Mr. Pandey pointed out that any advertisement pertaining to pre-natal or pre-conception sex selection or determination was punishable under Sec 22 of the Act and the publishers, owners of offending centre/clinic and the operators or employees would be prosecuted against. Photographic evidence of the advertisement and any materials seized from such centre would be evidences before the court. In the second case study, he informed the participants that Sec 19 and Rule 9 were violated and the owner of the centre and the operator of the machine would be prosecuted under Sec 23 of the Act.

View of the Panelists: Mr. S.M. Haseeb: Doctors licence from the Medical Council shall also remain suspended while legal proceedings are continuing against him/her.

Mr. Uday Warunjikar: Complaint via email or through any website is also cognizable. In Maharashtra, a telephonic helpline has been established for facilitating anonymous complaints under the PCPNDT Act which can be taken cognizance of.

Mr. Sabu George: Hospital birth data is an essential evidence to establish whether or not sex determination/sex selective elimination of pregnancy is being conducted at the centre/clinic. Skewed ratio is a clear indicator of clinic/centre

Dr. Neelam Singh: Normal biological Sex Ratio is 954 girls against 1000 boys and this ratio is a global constant.

Group 4 Represented by Mr. Arun Kumar Mall (CJM, Rampur)

View of the Presenter: Mr. Mall informed the participants that the operator not possessing necessary qualifications as required by the PCPNDT Act was a violation under Rule 3 and was a punishable offence. The operators qualification certificate would be ample evidence to prove this offence in a court of law and the operator as well as owner of the USG centre would be prosecuted against. In the second case, multiple violations under Rule 9, Rule 17 and Rule 18 have been witnessed which are punishable under the Act.

View of the Panelists: Mr. Uday Warunjikar: He informed the participants about the amendment to Rule 13 which now reads that any intimation of change in employee, address, employee, etc. shall be made to the AA thirty days before such change is made. He also said that this statute was extraordinary in the sense that Rule 18 provides for a code of conduct to be followed by USG centres/clinics etc.

(Interactive discussions are seen at Group 1s table) (Group 2 being facilitated by Mr. Uday Warunjikar)

(Dr. Neelam Singh facilitating Group 3 discussions) (Group 4 being facilitated by Dr. Vaibhav Pathak)

Address by Chairperson: Honble Mr. Justice Bhanwar Singh

Awareness generation exercise is an essential means of ensuring the arrest of this practice of female foeticide and also of sex determination. Side effects and after effects of undergoing such procedures and also of undergoing sex selective elimination of pregnancy should also be made known to the public.

He suggested that a jammer should be installed in USG machines for regulation of use of such machines.

Spiritual education should be imparted to newly-weds and other couples and to UGC owners, medical fraternity so that they abhor the practice of sex determination and also to deter them from practising gender bias/discrimination.

There is a need for dispensing quicker justice especially in cases under PCPNDT Act.

VALEDICTORY SESSION

Summing up: Mr. Rajeev Maheshwaram (Ad. Secretary, UPSLSA)

Mr. Rajeev Maheshwaram summed up the whole event and conveyed his gratitude to all the invitees & speakers for sharing their eye opening experiences and information with Judiciary and generating a discussion.

(Mr. Rajeev Maheshwaram summing up the Workshops events)

Vote of Thanks: Dr. Neelam Singh (Chief Functionary, Vatsalya & Member of CSB & NIMC)

Dr. Neelam Singh delivered Vote of Thanks to all the dignitaries and Chairpersons who attended the Workshop:

Honble Mr. Justice U.N. Singh for inaugurating the Workshop, Chairing the Inaugural Session and also for giving valuable guidance.

Honble Mr. Justice Bhanwar Singh for chairing Working Session II and also for allowing us to use the infrastructure of IJTR for organising and conducting this Workshop as well as for giving us his valuable suggestions and opinions. She thanked the officers and staff of IJTR for helping in arranging the Workshop, without whom the event would not have been possible.

The Resource Persons, Mr. Uday Warunjikar and Mr. Sabu George, for sharing their experiences with the participants as well as for being present in the Workshop at such short notice.

Mr. P.K. Goel and the officers of UPSLSA who have not only guided us in organising this Workshop but also have also been supporting us and guiding us all through our efforts made for the implementation of the PCPNDT Act.

All the participants for taking out the time and making the effort in attending and actively participating in the Workshop.

(Dr. Vaibhav Pathak felicitating Mr. S.M. Haseeb)

OUR RESOURCE PERSONS

It was a huge honour and a privilege to have with us Dr. Sabu George, National Activist & Member of National Inspection & Monitoring Committee, Mr. Uday Warunjikar, Advocate, High Court, Mumbai and Dr. Neelam Singh, Chief Functionary, Vatsalya & Member of Central Supervisory Board & National Inspection & Monitoring Committe, during the Workshop in their capacity of National level Resource Persons.

Dr. Sabu Georges extensive experience and constant efforts against the practice of female foeticide and his uphill battles to strengthen the implementation of PCPNDT Act across the nation stood as beacons of knowledge on the podium as he addressed the participants during the Inaugural Session. His prompt acceptance of our invitation and imparting of information during the Workshop is something that we will always be grateful for.

Mr. Uday Warunjikar was able to spare time for the Workshop from his hectic schedule and was able to join us despite the short notice available to him for accepting our invitation. His discourse on the intricacies of the PCPNDT Act, the authorities and statutory bodies constituted under it, the offences and punishments to be meted out and the qualifications and records to be maintained to ensure compliance with the Act was the highlight of Working Session I. His demeanour, manner of addressing the participants and palpable zeal for the subject was clearly visible, for which we shall be indebted to him.

Dr. Neelam Singh, Chief Functionary, Vatsalya, was present at the Workshop in a dual capacity; Firstly, as the organiser and secondly, as a Resource Person. Since she has been actively working on this issue for more than 17 years in her capacity as Chief Functionary of Vatsalya, her sharing of experience enriched the participants knowledge on the issue and turned the paper-bound, legal discourse into a flesh and blood issue of relevance and concern. We are thankful to Dr. Singh for being a visionary and a guiding force in the uphill battle against this issue.

(DR. SABU M. GEORGE MR. UDAY WARUNJIKAR DR. NEELAM SINGH+919810619901 +919820013742 +919451543418)

ANNEXURE

Case Studies: The Case Studies prepared for Group Work during Working Session II dealt with imaginative facts and were based on experiences of inspection visits. They were eight in number and are as follows:-

GROUP 1 CASE STUDY I

A Right to Information application was filed requesting details from the Chief Medical Officer, Faizabad about the total number of registered ultrasound centres in the district. The CMO office responded with the detailed data within a month.

The applicant conducted an extensive mapping exercise of the USG centres in the district and on analysing the data from the CMOs office and the data attained from the mapping, he found that two USG centres were running unregistered.

The applicant complained to the District Magistrate regarding the two abovementioned centres and the DM took action on the basis of this complaint. An SDM was nominated by the DM with regard to the matter and inspection was conducted on the premises of both the USG centres complained against.

The fact of the centres running unregistered was verified and confirmed during the inspection and further it was found that the centres were not maintaining OPD registers and records of Form F. Both the centres were sealed and seized but no legal proceedings were initiated against the owners, operators and managers of the centres.

The applicant filed another complaint with the DMs office with the evidence collected regarding the lack of legal action taken against the two centres but did not receive any response from the District Magistrate.

The applicant, having received no response from the DM for a month since filing his complaint & no action having been taken on his complaint, proceeded to institute legal proceedings against the two USG centres in the CJM Court.

Q1. Is the applicant legally entitled to institute legal proceedings under the PCPNDT Act? If so, then under what circumstances?

Q2. What violations/offences have been committed in the instant case under the PCPNDT Act?

Q3. Who all will be acted against as defendant in the instant case/who all will be prosecuted against?

Q4. What evidence would be adequate for the Court to reach a verdict?

Q5. What punishment/relief would the Court grant in the instant case?

GROUP 1 - CASE STUDY II

On 10th of September, 2012, Mr. A was shopping in the busy Bhootnath Market in Lucknow. He stopped at the main temple momentarily but his gaze was distracted by a bright hoarding placed just beside the temple premises. The hoarding displayed the name and address of a clinic which specialised in dispensing medicine which was effective & guaranteed the birth of a male child to couples who took the medicine.

The man, himself being a father of two girls, was disgusted by the blatant advertisement of gender discrimination. He went back home, got a camera and clicked photographs of the advertisement.

He then mailed his complaint regarding the matter and the photographs as evidence to the DMs office, requesting him to take action under the PCPNDT Act. The DM acted upon the complaint and an inspection under the Act was conducted on the premises of Vibgyor Clinic.

The inspection team found samples of the medicine whose packets displayed the guarantee that upon being consumed it would lead to birth of male child only. The samples were seized from the clinic and it was also noted that neither was there any doctor in attendance nor was the clinic registered under the PCPNDT Act. The clinic was sealed and seized and legal proceedings were filed in CJM Court under the PCPNDT Act.

Q1. What violations have been committed in the instant case under the Act?




Q5. Can this clinic be registered under the PCPNDT Act?

GROUP 2 - CASE STUDY I

In pursuance of information obtained from the Chief Medical Officers office in response to a Right to Information application regarding registered ultrasound centres in district Etawah, a decoy operation was planned by a Civil Society Organization from Etawah.

A pregnant female employee of the CSO was finalised for conducting the decoy operation. She approached the USG centre with a man, posing as her spouse, and complained of severe stomach cramps. She was asked about any medical ailments she was suffering from, whether she had suffered from any complications during her pregnancy, whether she had consulted with a medical practitioner regarding the stomach cramps, and if she was on some medication for the same. She responded to all the queries in the negative.

The attending doctor did not get Form F & Form G (form of consent) filled and signed by the decoy. He proceeded to explain to her that she neednt worry and that the ultrasound procedure would be conducted without any hassles but did not explain to her the side effects and after effects of the procedure. The man posing as the decoys spouse then asked the doctor if they could also know the sex of the foetus to which the doctor replied in the affirmative. He informed them that it was during the ultrasound procedure that he would inform the patient about the sex of the foetus. When asked whether it would cause problems for the doctor or for themselves if they enquired about the sex of the foetus, the doctor dismissed their concerns and told them that it was alright to know the sex.

He pointed to a miniature temple inside the ultrasound room in which the idols of female and male deity were placed and told the decoys that he would point to one or the other to indicate the sex of the foetus.

However, before she could undergo the ultrasound procedure, a planned phone call interrupted them and claiming a family emergency, they scheduled an appointment for a future date.

The audio and video of this entire conversation was recorded by the decoy using a camera and microphone she had hidden in the side of her handbag and this was submitted by the CSO to the District Magistrate.

Inspection was carried out by the Appropriate Authority at the USG centre and it was found that the centre did not regularly maintain the register, copies of Form F, and consent forms of the patients as was required under the PCPNDT Act. A copy of the registration certificate was not displayed in the centre and neither was a copy of the Act & rules found.

The centre was sealed and seized and legal proceedings were initiated in the CJM Court.

Q1. Is conducting a decoy operation legally permitted?





GROUP 2 CASE STUDY II

A Right to Information application was filed requesting details from the Chief Medical Officer, Ambedkar Nagar about the total number of registered ultrasound centres in the district. The CMO office responded with the detailed data the stipulated time.

The applicant conducted an extensive mapping exercise of the USG centres in the district and on analysing the data from the CMOs office and the data attained from the mapping, he found that one USG centre was running unregistered.

The applicant complained to the District Magistrate regarding the abovementioned centre and the DM took action on the basis of this complaint. An SDM was authorised by the DM with regard to the matter and inspection was conducted on the premises of the USG centre complained against.

The fact of the centre running unregistered was verified and confirmed during the inspection and further it was found that the centre had not maintained copies of Form F and neither did it comply with code of conduct stipulations like displaying notice board to the effect that sex determination is not conducted at the centre. No copy of the PCPNDT Act & Rules was found on the premises as well. The centre was sealed and seized but no legal proceedings were initiated against the owner, operators and manager of the centre.

The applicant filed another complaint with the DMs office with the evidence collected regarding the lack of legal action taken against the two centres but did not receive any response from the District Magistrate.

The applicant, having received no response from the DM for a month since filing his complaint & no action having been taken on his complaint, proceeded to institute legal proceedings against the two USG centres in the CJM Court.

Q1. Is the applicant legally entitled to institute legal proceedings under the PCPNDT Act? If so, then under what circumstances?





GROUP 3 CASE STUDY I

On 10th of August, 2012, Mr. A was shopping in a busy marketplace in Lakhimpur Kheri. He stopped at the main temple momentarily but his gaze was distracted by a bright hoarding placed just beside the temple premises. The hoarding displayed the name of a clinic which specialised in dispensing medicine which was effective & guaranteed the birth of a male child to couples who took the medicine.

The man, himself being a father of two girls, was disgusted by the blatant advertisement of gender discrimination. He went back home, got a camera and clicked photographs of the advertisement.

He then mailed his complaint regarding the matter and the photographs as evidence to the DMs office, requesting him to take action under the PCPNDT Act. The DM acted upon the complaint and an inspection under the Act was conducted on the premises of Dr. Zuberis Clinic.

The inspection team found samples of the medicine whose packets displayed the guarantee that upon being consumed it would lead to birth of male child only. The samples were seized from the clinic and it was also noted that neither was there any doctor in attendance nor was the clinic registered under the PCPNDT Act. The clinic was sealed and seized and legal proceedings were filed in CJM Court under the PCPNDT Act.






An inspection was carried out under direction of the District Magistrate of Shahjahanpur on 5th of October, 2012 at Surekha Fertility Clinic and Ultrasound Centre (Registration No. XXXX/2009). The inspection team was headed by the SDM authorised by the DM for the purpose. The following deficiencies were found by the team during the inspection:

Register carrying the names and full addresses of the men and women who had undergone ultrasound procedures/tests, names of their spouse/father and the date of their first reporting for such test/procedure in serial order was not regularly maintained at the centre

Copies of Form F showed blank columns, full address of the patient was not mentioned and serial numbers did not match with the register entries

Birth register showed that out of 407 deliveries in 2011-12, 298 were boys and the remaining were girls

Owner of the centre could not produce copy of registration certificate or a copy of the PCPNDT Act & Rules.

The centre was sealed and seized by the inspection team and legal proceedings were initiated against the centre. The registration certificate of the centre was also suspended by the AA.





Q5. Is failing to keep a copy of PCPNDT Act & Rules in the premises of the centre a violation of the Act?

GROUP 4 - CASE STUDY I

An inspection was conducted on order of Appropriate Authority in the premises of ABC Ultrasound Centre in Jhansi district on 4th May, 2012. The inspection team found that the ultrasound procedure/test was being conducted on Mrs. Rita Singh, a pregnant woman and that a long line of women was waiting in the reception area of the centre as well.

The inspection team asked the women what they had come for to the centre, to which they replied that they had come for ultrasound procedure/test. Once the ongoing ultrasound procedure was concluded, the team questioned the operator regarding the format which was filled and declaration of pregnant women taken. The woman denied any such formality having been done and her signature being on taken on any such form. She or her family was not even inquired of their address, details of their children, etc.

The inspection team asked the operator to show the team her qualification certificate and also checked their records to compare and confirm the information.

Firstly, it was found that the name of the doctor/operator in the records was Dr. XYZ and the person operating the ultrasound machine at present was Dr. ABC. The two were obviously not the same and no intimation of this change was given to the AA.

Secondly, it was found that the person operating the ultrasound machine was not adequately qualified as per the PCPNDT Act and that the certificate submitted before them by her stipulated her qualification as that of Bachelor of Ayurvedic Medicine and Surgery, which was not in consonance with the qualifications specified in the Act & Rules.

The certificate was seized and the centre was sealed and seized in light of these violations. Proceedings were initiated against the centre under the PCPNDT Act and a show cause notice was issued some six months ago. No further information could be gathered from health department.





Q5. What should have been the action taken after giving a show cause notice by the Appropriate Authority?


An inspection was conducted by a team formed at the behest of the District Magistrate of Lakhimpur Kheri district on 3rd August, 2012. Inspection was conducted in 12 USG centres in the district and it was a spontaneous procedure of which nobody was informed earlier.

XX Ultrasound Centre in Lakhimpur city was found to be in gross violation of many of the provisions of the PCPNDT Act. Following were the violations found during the inspection:

There was no notice on the premises of the centre to the effect that disclosure of sex of foetus was not done at the centre and that it was an offence under law

Copy of registration certificate was not displayed in a conspicuous place at the centre

Copy of Bare Act & rules made thereunder was not available at the centre when asked for by the inspection team

Register carrying the names and full addresses of the men and women who had undergone ultrasound procedures/tests, names of their spouse/father and the date of their first reporting for such test/procedure in serial order was not regularly maintained at the centre

Copies of Form F showed blank columns, full address of the patient was not mentioned and serial numbers did not match with the register entries

Doctor conducting the ultrasound procedure/test was not the same as the one whose name had been submitted at the time of applying for registration in Form A

Name and designation of the doctor conducting the ultrasound procedure/test was not displayed on the USG reports found at the centre

In light of the findings during the inspection, the centre was sealed and seized as per the PCPNDT Act and legal proceedings were filed by the Appropriate Authority in the CJM Court.





The Workshop concluded with the National Anthem...

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