Home Womens Rights Initiative news on womens rights violence against women Don’t trash this law, the fault lies in non-implementation

Don’t trash this law, the fault lies in non-implementation


Published in THE HINDU


The campaign against female foeticide will remain hypocritical and superficial as long as the nexus among profiteering doctors, politicians and bureaucrats continues to make a mockery of the legal provisions.

There can be little quarrel with the argument that India requires a comprehensive policy to prevent sex selection as put forward by National Advisory Council members Farah Naqvi and A.K. Shiva Kumar in The Hindu (“India & the sex selection conundrum,” January 24, 2012). That the use of sex selection technologies to abort female foetuses is linked to the increasing devaluation and disempowerment of women is well known. It is surprising however that in the “complex interface” described by the authors, ranging from cultural attitudes to socio-economic pressures, they should have omitted one obvious reason for the skewered sex ratios namely, the rapid spread of dowry demands across castes, communities and geographies. The present framework of economic policies has acted as an engine for crass consumerism glorified by a powerful media. Indeed, the only effect of the trickle-down theory to be seen today is the trickle-down of the shallow values of shining India that determine the status of a person through the ownership of luxury goods. Like a black shadow in the wake of dowry demands, is the spread of sex selection.

Personal choice theory

Yet another reason ignored by the authors in their “comprehensive” strategy, is the coercive two-child policy being promoted by governments. The Chinese implementation of the one-child policy framework along with mass availability of sex determination resulted in frighteningly unbalanced sex ratios. The Chinese government’s belated recognition of this is yielding positive results. But India is yet to learn from their experience. Even today State governments use coercive and undemocratic methods to enforce the two-child norm. “Hum do hamare do” is often translated as “Hum do hamare do ladke.” The struggle against coercive laws to enforce the two-child norm is part of the struggle against sex-determination, and any comprehensive policy must target these faulty population control policies.

But the fatal flaw in the argument is not the omission of dowry or the consequences of the two-child norm, but an approach which tends to decriminalise the act of female foeticide by dismissing the importance of the implementation of the law. There is an opinion that some western feminists put forward decades ago, which found resonance in some circles in India, that sex-selection is a matter of personal choice. It was said that it is better to abort the female foetus than give birth to an unwanted baby girl who will face discrimination all her life. While the authors do not give any indication of agreement with this theory, the grounds of their critique of the present policy certainly do raise questions about their position regarding the treatment of female foeticide as a crime. The main problem according to them has been the focus on the practice of sex selection “seeking to stem the supply of technology… through application of the law. The rationale that stopping supply will reduce the demand … hasn’t panned out as planned.” Nowhere in their article do they describe female foeticide as a crime that should be punished.

Other factors

Has there been any “application of the law” as assumed by the authors? The present campaigns of the government against female foeticide are hypocritical and superficial precisely because the government has utterly failed to implement its own law or perhaps has deliberately not done so. The strong links between sections of a powerful medical fraternity who make profits through the use of sex-selection technologies and politicians and bureaucrats has made a mockery of the legal provisions. For every million crimes of sex selection and sex selective abortions annually, only a few cases are filed in the courts and there are hardly any convictions. Since 1994 when the Pre-conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) law was enacted there have been only 93 convictions. Of the 1,036 ongoing cases, only a small percent, possibly 10 per cent, relate to charges of communication of sex of the foetus. A majority of the cases are for non-maintenance of records and non-registration of ultra-sound machines. Even in cases following widely publicised sting operations of sex determinations, no action has been taken against the doctors concerned. For over a decade, the Medical Council of India refused to change its rules to include sex selection as a ground to delicense doctors. In Rajasthan when the licenses of 25 or so doctors were suspended in 2006, following a Statewide campaign, the Secretary of the Medical Council, who was held responsible for the suspension of the licences by the medical fraternity was removed and the suspensions rescinded. The DM of Hyderabad was physically assaulted by leading members of the Hyderabad Medical Association because of his efforts to implement the law. Although the law expressly bans advertisements of sex selective technologies, Google has been advertising sex selection for the last three years after giving a commitment to honour Indian laws. Even though this has been brought to the attention of the government and raised in Parliament, the government has failed to act. The present determination of the government to intervene because of the defamatory images of leaders of the ruling alliance on Google sites, has been sadly absent as far as the violation of the PNDT Act by Google is concerned. The attempt is to both dilute and subvert the law. It would be an entirely erroneous strategy for movements against sex determination to give up the crucial demand for implementation of the law and to force the government to include this in any official policy framework in the name of a comprehensive strategy.

Even the politics of religious fundamentalists to equate female foeticide with the “sin” of abortions are blamed on the “singular focus on the PNDT Act.” Women’s organisations have fought against the equation of the struggle against female foeticide with the “right to live” mobilisations which deny women the right to abortion. It is condemnable that official agencies including State governments have provided anti-sex determination platforms to religious leaders of all hues to spread their reactionary message against abortions. These are politically incorrect decisions which reflect the lack of a coherent policy framework. It is this which should be condemned, not the legal framework against female foeticide.

Issue of accountability

It is a truism that the law alone can never rid society of crimes linked to systemic discrimination and oppression. India on a trajectory of exclusive growth is strengthening and adding to inequalities based on class, caste, gender, community. Elected governments must be held accountable at different levels. Issues of women’s economic rights, of employment, of rights in decision making are critical in policies to enhance women’s status. Any comprehensive national response to negative sex ratios must surely include these aspects which would be of far more use than the incentives being offered through inconsequential cash transfer schemes rightly critiqued by the authors. But, in the end, the question remains: is foetus sex determination a crime or not? If yes, then the law is essential. By only targeting communication to families and ignoring mass crimes committed by unethical doctors and remaining silent on the vested interests of the ultrasound companies, India is unlikely to stop the ongoing genocide against the next generation of women. There can be no comprehensive policy framework which ignores the gross violations of the law.

(Brinda Karat, a member of the CPI(M) Polit Bureau, and Dr. Sabu George, petitioner in the Supreme Court on the PNDT Act, have been campaigners against female foeticide.)



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