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India’s Medical Community Must Aid, Not Impede, Law on Pre-Natal Diagnostics

Despite the declining sex ratio indicating the widespread use of sex-selective abortions, the Indian Medical Association is making efforts to weaken the law rather than strengthen its implementation.

Dilution of the PCPNDT Act will only facilitate the worsening of child sex ratio. Credit: Reuters

Dilution of the PCPNDT Act will only facilitate the worsening of child sex ratio. Credit: Reuters

The mass protest by 10,000 doctors as part of the Indian Medical Association’s (IMA) ‘Dilli Chalo’ ‘Dilli Chalo’ rally on June 6 was an outcome of the increasing violence against doctors. While there is no doubt that there is an urgent need to tackle this issue, the IMA leadership must also reflect on the growing disconnect between medical professionals and the public.

The slogan that IMA president K.K. Aggarwal coined after this protest – ‘Do not force us to go to a nation-wide strike’ – is indeed a serious one for, alongside the main concern, certain others were piggy-riding the momentum generated. One of these is their long-standing effort to weaken the Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act.

IMA demands weakening of law

The IMA has claimed that it is against sex-selective abortions but at the same time it has included the following among the list of demands: criminal prosecution of doctors on clerical errors and minor administrative lapses should be taken out of all the laws. The IMA’s opposition to the PCPNDT Act and its implementation is unfortunate and unacceptable, and its attempt to gloss over 18 lakh medical crimes annually as “clerical errors” is shocking.

This development, however, is not sudden. It is essential to remember that there have been concerted attempts by medical associations in the Central Supervisory Board of the PCPNDT Act to subvert the law over the past decade. There have also been various petitions in constitutional courts against the PCPNDT Act. For instance, the association of radiologists has since 2002 repeatedly challenged the very constitutionality of the Act in the Supreme Court; though they have been unsuccessful so far. Others have attempted to undermine the health ministry’s efforts to set standards of competence and training for ultrasonologists.

The IMA demands submitted to the inter-ministerial committee reveal the association’s real intent: “Urgent amendments needed in the PC & PNDT Act to ensure that strict penalties only on actual act of sex determination or female foeticide and not for clerical errors in the maintenance of registers etc”. The IMA is also of the view that registration should be of ultrasound machines and not of doctors not doing pelvic ultrasounds. Related to the first demand is the IMA’s expectation that the crucial section 4(3) be amended.

The IMA’s demands deliberately divert attention from the true nature of the problem. The implementation of the law is being ignored in most states, leading to a continuous decline in sex ratio in the country. Both the latest data based on civil registration and the government’s Sample Registration System (SRS) data confirm the declining trend of girls at birth.

According to the SRS data, sex ratios at birth have consistently declined from 909 girls per thousand births to 900 from 2011 to 2015. Sex ratio at birth of 900 means that over 5.4% of girls are not allowed to be born. The number of missing girls is about six lakh every year. These figures are a frightening indicator that we are looking at a gender imbalance of epic proportions.

Implementation of Act only on paper

The PCPNDT Act was passed by the parliament in 1994 but its implementation remained on paper for several years. For instance, when registration of pre-natal diagnostic clinics was executed, the intent of the Act was diluted; and only ultrasound clinics which were involved in invasive procedures were required to be registered. Thus, in 2000, when the Supreme Court public interest litigation was filed, barely 600 clinics were registered, while tens of thousands of clinics and doctors performing ultrasound were exempted. No wonder the 1991-2001 decade, between the two census, showed the sharpest decline in sex ratio at birth for Punjab, Haryana, Gujarat, Delhi etc.

It was only after the intervention of the Supreme Court in 2001 that measures for the implementation of the PCPNDT Act were earnestly initiated, and registration of all ultrasound clinics (specifying the place, details of ultrasound machines and performing doctors) was started. And now IMA wants to undermine this Supreme Court judgement by pressurising the government to limit the registration criterion legislatively.

There are those who argue that a law that has not served its purpose for over 20 years needs to be re-examined. But the fault lies not in the Act. The present Act is adequate to create deterrence and to deal with the crime of sex selection, as can be witnessed from developments in Maharashtra, Punjab, Haryana, Rajasthan etc. where the trends of sex ratio at birth are beginning to shift in a positive direction. Medical professionals indulging in the illegal and unethical practice have started facing the brunt and in recent years, hundreds of doctors have been convicted under the Act (416 convictions as of March) and about a hundred have been suspended by the medical councils. This might well be a reason for the current inclusion of the demand for dilution by the IMA in its street protests and in its claims of clerical errors.

It must be noted that ‘form F’ is not merely a “clerical requirement” but important evidence when a crime is committed by systematic and repeated violation of the PCPNDT. The imperative of record keeping is fundamental in any regulation on tax or in clinical medicine. As a matter of fact, meticulous maintenance of ‘form F’ is a good safeguard for honest doctors. Evidence of wrongdoing is what is most problematic for those who want to profit from the crimes of sex selection. Ideally, those who want to protect doctors from harassment should ask for strict maintenance of records and demand routine medical audits. The IMA should help, not impede this process.

Finally, the recent Supreme Court orders cannot be ignored by the government or by the IMA. In its judgement (Voluntary Health Association of Punjab Vs. Union of India & Others) delivered on November 8, the Supreme Court ruled to uphold the existing provisions of the Act.

The learned judges not only dismissed the petition that was filed by the IMA where the contention was that “Sections 3A, 4, 5, 6, 7, 16, 17, 20, 23, 25, 27 and 30 of the Act and Rules 9(4), 10 and ‘form F’ are the subject matter of concern and that these Sections of the Act and Rules are being misused and wrongly interpreted by the concerned authorities thereby causing undue harassment to the medical professionals all over the country under the guise of the ‘so-called implementation,'” the SC also passed further orders to strengthen the implementation of the PCPNDT Act, rather than dilute its sections, as demanded by the IMA.

In the matter of misuse of the Act, in the words of the Supreme Court:

“Various Forms have been provided to meet the requirement by the Rules. On a perusal of the Rules and the Forms, it is clear as crystal that attention has been given to every detail”

“In our considered opinion, whenever there is an abuse of the process of the law, the individual can always avail the legal remedy. We are of the convinced view that the averments (With these averments, it has been prayed for framing appropriate guidelines and safeguard parameters, providing for classification of offences……to add certain provisos/exceptions to Sections 7, 17, 23 and Rule 9 of the Rules) of the present nature with such prayers cannot be entertained and, accordingly, we decline to interfere.”

Dilution of the PCPNDT Act will only facilitate the worsening of child sex ratio and reduce the number of girls at birth. It is time for doctors to become allies in the campaign to strengthen its implementation. The failure to prevent the unethical practice of sex selection is why we desperately need the implementation of the law.

How long will our medical associations continue to ignore the declining sex ratio? Over the last decade, prominent medical journals in UK, US, Canada, Scandinavia etc. have been publishing research studies highlighting this extreme form of discrimination against women in our country. Our hope lies with the young generation of doctors who need to participate sincerely in this government’s Beti Bachao Beti Padhao campaign.

Sabu George is an independent researcher-cum-activist. Sudha Sundararaman is the national vice president of the All India Democratic Women’s Association.