Vinod Soni v. Union of India

VINOD SONI v.
UNION OF INDIA
[2005 Cri. LJ 3408, 2005 (3) MhLj 1131]
INTRODUCTION
Female Foeticide refers to the abortion of a female foetus illegally; the term refers to
the inhuman practise of killing a foetus which has been determined to be a female.
The preference of a male child has existed in the Indian culture since ages and it is
this mindset which is primarily responsible for female foeticide and infanticide along
with the dwindling sex ratio in the country. In the patriarchally dominant Indian
society, it was a common practise among many families in the olden days to
continuously produce off springs, until a male child was born. In areas wherein the
birth of a girl child was frowned upon, it led to the killing of the female infant almost
immediately after the birth; whereas in certain other areas they were subjected to a
lifelong treatment as an unwanted baggage. This selective abortion of female foetuses
kills more than a million females every year, with tragic and far-ranging
consequences.
The normal child sex ratio all over the world is 104:100, i.e. one hundred and four
males per 100 females. However, the Indian census figures reveal an astounding
figure as high as 128:100(Jammu and Kashmir), 120:100 (Haryana) and 118:100
(Punjab). Statistical data also reveals that since 1991, almost 80% of the states have
recorded a declining sex ratio in the country. This can be attributed to the advent of
ultrasound technology in the country, due to which people were exposed to a whole
new way of being able to determine the sex of the child before its birth and if it
turned out to be a female, could lead to immediate termination of the pregnancy,
resulting in female foeticide. One estimate even suggests that more than ten million
foetuses may have been illegally aborted in India since then. These horrific
circumstances led to the Parliament to enact the Pre-Conception and Pre-Natal
Diagnostic Techniques (PCPNDT) Act, 1994; which effectively banned the pre-natal
sex determination.
FACTS
In the present case, the petitioners- a married couple, moved the Bombay High Court
challenging the constitutional validity Pre-Conception and Pre-Natal Diagnostic
Techniques (PCPNDT) Act, 1994; claiming it to be violative of Articles 14 and 21 of
the Indian Constitution. However, at the time of arguing the case the counsel on
behalf of the Petitioners submitted that the petition does not stress upon the
violation of Article 14. Therefore, effectively speaking, the Petitioners challenged the
validity of the act in light of the fundamental right to life and personal liberty
guaranteed by the Indian Constitution under Article 21.
ISSUES
Whether the PCPNDT Act, 1994 is violative of Article 21 of the Constitution of India?
ANALYSIS
The meaning and scope of Article 21 has been broadened from time to time through
elaborate interpretations of the phrase- life and personal liberty. In the plea, the
petitioners contended that personal liberty of a citizen of India consisted of the right
to choose the sex of his/her offspring. As a result, he/she is entitled to take or
undergo any medical procedure which provides for the determination or selection of
the sex of the foetus to determine the nature of family an individual can have in
exercise of the liberty granted by virtue of Article 21. Since the PCPNDT Act banned
sex determination, it is violative of a prized fundamental right and as a result thereof
should be declared redundant. Reliance was placed on a Supreme Court judgement
wherein the Apex Court expressly stated Article 21 to include the right to food,
clothing, healthy environment and cultural heritage i; and similarly, the provisions
can rightly be expanded to recognise the petitioner’s contentions.
While dismissing the plea and the elaborate contentions of the petitioners saying that
the petition doesn’t even make a prima facie case for violation of Art.21, the division
bench of the Bombay High Court observed that even if the provisions of Article 21 are
interpreted by expanding them to the extremes of possible elasticity of their
meanings, they cannot be said to include right to selection of sex pre or post
conception. Instead, it went ahead to hold that Art. 21 embodies the right of a foetus
to full development irrespective of its sex. The determination of sex of such a child,
whether pre or post conception could potentially deny it the right of coming into
existence.
It went on to clarify that the act does not enforce a blanket ban on all procedures that
could possibly be misused for sex determination of the foetus. Section 4 of the Act
provides for situations when such provisions can be administered-
1) chromosomal abnormalities
2) genetic metabolic diseases,
3) haemoglobinopathies,
4) sex-linked genetic diseases,
5) congenital anomalies
6) any other abnormalities or diseases as specified by the Central Supervisory
Board
Thus, the enactment permits such tests if they are necessary to avoid an abnormal
child from coming into existence. Apart from these, the procedures are allowed in all
those cases wherein certain dangers to the pregnant woman exist.
CONCLUSION
Apart from the PCPNDT Act, there exist certain other statutes which directly or
indirectly seek to control the menace of female foeticide in India and improve the
status of women in the society, as for instance- The Dowry Prohibition Act, The
Immoral Traffic (Prevention) Act, The Female Infanticide Act, etc. However, it is the
mindset of the average Indian that needs to change, and the role of legislation in this
regard can at best be minimal. These issues can only be tackled through education
and empowerment of women.
i
Kishan Pattnayak & Ors. v State of Odisha [AIR 1989 SCC 677]

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