CIVIL SOCIETY REPORT CARD

Transcription

1 CIVIL SOCIETY REPORT CARD on PCPNDT ACT Review of court cases, inspections and actions taken by state medical councils December

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3 CIVIL SOCIETY REPORT CARD on PCPNDT ACT Review of court cases, inspections and actions taken by state medical councils December 2015

4 ii Design and print: Aspire Design, New Delhi

5 Acknowledgement Girls Count takes this opportunity to express its sincere gratitude to all those who helped in the successful completion of this civil society report card. A special thanks to the National Foundation for India (NFI) and the United Nations Population Fund (UNFPA) for their unremitting support and guidance. We are highly grateful to Ms Bindu Sharma, Director, PNDT, Ministry of Health and Family Welfare (MoHFW), Government of India, for her feedback. We are thankful to Human Rights Law Network (HRLN) for providing us access to the affidavits filed by the states/union territories in the Supreme Court of India as directed in the matter of Writ Petition (civil) no. 346 of 2006 filed by Voluntary Health Association of Punjab (VHAP). We would also like to articulate our gratefulness to Advocate Ms Leena Prasad, who reviewed the affidavits and provided her valuable insight and expertise. We earnestly appreciate our coalition partners: Dalit Mahila Vikas Mandal (DMVM), Maharashtra; Grass Root Support Foundation (GRSF), Delhi; Mayaram Surjan Foundation (MSF), Chhattisgarh; R. P. Education Society (RPES), Haryana; Sikshit Rojgar Kendra Prabandhan Samiti (SRKPS), Rajasthan; Social Upliftment Through Rural Action (SUTRA), Himachal Pradesh; Vatsalya, Uttar Pradesh; and Voluntary Health Association of Punjab (VHAP), Punjab; for facilitating the process of data collection for the report card. We are also immensely grateful to the Directorate of Health Services, Chhattisgarh; Department of Health and Family Welfare, Delhi; Director General Health Services, Haryana; Department of Health Safety and Regulation, Himachal Pradesh; State PCPNDT Cell, Pune, Maharashtra; Department of Health and Family Welfare, Punjab; and State PCPNDT Cell, Directorate of Medical Health and Family Welfare Services, Rajasthan; for sharing valuable information related to the implementation of the PCPNDT Act in their respective states. Without their support it would not have been possible to put together this Report Card. iii

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7 List of Abbreviations AA APP CJM CMO CrPC CSB CSR DAA DAC DCSR DMA DMC GBSS GC GCC GL IMA IPC IVF JMFC MCI MoHFW MPMC MTP NIMC PCPNDT PIL PIR PNDT PP SAA SAC SI SIHFW SIMC SRB SRS SSB U/s UoI UPMC Appropriate Authority Assistant Public Prosecutor Chief Judicial Magistrate Chief Medical Officer Criminal Procedure Code (Indian) Central Supervisory Board Child Sex Ratio District Appropriate Authority District Advisory Committee Declining Child Sex Ratio Delhi Medical Association Delhi Medical Council Gender-Biased Sex Selection Genetic Clinic Genetic Counseling Centre Genetic Laboratory Indian Medical Association Indian Penal Code In-Vitro Fertilisation Judicial Magistrate First Class Medical Council of India Ministry of Health and Family Welfare Madhya Pradesh Medical Council Medical Termination of Pregnancy National Inspection and Monitoring Committee Pre-Conception and Pre-Natal Diagnostic Techniques Public Interest Litigation PCPNDT Inspection Report Pre-Natal Diagnostic Techniques Public Prosecutor State Appropriate Authority State Advisory Committee Simple Imprisonment State Institute of Health and Family Welfare State Inspection and Monitoring Committee Sex Ratio at Birth Sample Registration System State Supervisory Board Under Section Union of India Uttar Pradesh Medical Council v

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9 Content Acknowledgement List of Abbreviations i iii About the Civil Society Report Card 2-3 Analysis of Affidavits 4-15 A Compilation of Data on Court Cases, Inspections and Action taken by State Medical Councils Bihar Chhattisgarh Delhi Gujarat Haryana Himachal Pradesh Madhya Pradesh Maharashtra Odisha Punjab Rajasthan Uttar Pradesh Conclusion

10 About the Civil Society Report Card The Civil Society Report Card is a review of affidavits and compilation of data and information of selected states pertaining to monitoring and inspection, court cases and the action taken by the State Medical Councils under the Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act. This Report Card is a part of a series of reports reviewing the implementation of the PCPNDT Act on the ground. The first Report Card, released in August, 2014 covered information on current structure and status of statutory mechanisms constituted under the Act. The idea behind compiling this Report Card was to review the implementation/ progress made in the states since the inception of the Act. The Report Card does not look at the issue simplistically and considers the absence of monitoring and inspection, and filing of court cases or convictions as a symptom of non-implementation of the Act. The first part of the Report Card includes a summary and analysis of the affidavits filed in the Supreme Court of India by the governments of 13 states around the three indicators of the implementation of the PCPNDT Act. We in this part have tried to highlight on the action initiated by the states and the process followed by them. The second part of the Report Card includes state specific chapters where an attempt has been made to showcase what the data implies in terms of what the states are doing, what the states are not doing and what more they should do. METHODOLOGY Girls Count directly and through its partner organisations approached 12 states with formats designed specifically to obtain the quantitative data pertaining to monitoring and inspection, court cases and action initiated by the State Medical Councils. Baring a few states, data was not made available to us for all the fields and for the time period mentioned. For a couple of states we had to depend completely on their affidavits and for some we had to collect the data from the presentations that the state representatives had made during the recent state-level meetings. And for some other states, we used the combination of all these sources. This Report Card focuses mainly on the following three indicators to draw conclusions and inferences from the data collected through different sources including the affidavits submitted in the Supreme Court of India: 1. Monitoring and inspections 2. Filing of court cases 3. Action initiated by State Medical Councils under the PCPNDT Act SOURCE OF DATA The following sources were used to collect the quantitative data from the states selected for the Report Card since the inception of the PCPNDT Act till the filing of the affidavits by December 2014 and in the early months of 2015: The affidavits filed in the Supreme Court (September 16, 2014 onwards) by the 13 states in the PIL VHAP v/s UoI case. Information provided to Girls Count by the State PCPNDT Cell and the State Health Department. Presentations made during the Regional Workshop organised by the State Institute of Health and Family Welfare (SIHFW) and United Nations Population Fund (UNFPA) for the Appropriate Authorities in September 2015, in Jaipur. Official websites of the state governments. 2

11 LIMITATIONS The Report Card lacks uniformity in the state-wise presentation of data because of certain impediments faced by Girls Count in the compilation of data. The limitations were: Access to data: Despite repeated requests to the concerned departments, Girls Count was not able to get hold of all the data required for the Report Card from some states. Non-availability of data with the department: Many concerned departments did not have all the information/data requested by Girls Count. Lack of uniformity in time period: The concerned departments did not provide the data at the same time and of the same time period. Lack of information in affidavits: All the states have not revealed the complete information in their affidavits submitted to the Supreme Court. WHY VARYING TIME FRAME? The time frame of the data mentioned in the Report Card varies from state to state and from field to field due to the following reasons: After the Supreme Court order dated September 16, 2014, asking states to submit the affidavits, states filed their affidavits on different dates over a period of three months (by the end of 2014). Some of them even submitted the supplementary affidavits in early The states took their own time to share the data with Girls Count. So the information provided by them differs from state to state and does not match with the cut-off date of December Official websites of many of the states have not been updated. A few states have not even updated the data relevant to the Report Card since more than a year. We believe that a Report Card of this kind could possibly help the state governments do an internal review and assessment of the implementation of the PCPNDT Act and introspect about the work done since its inception till now. Wherever inspections have been undertaken, violations have been found; wherever cases have been systematically filed and pursued, convictions have taken place; and wherever the judiciary has taken cognizance of the matter in terms of its long-term social ramifications, the crime has been dealt in line with the intent of the law. What is important to highlight here is the fact that absence of action such as court cases does not mean absence of violations. And therefore one can get a sense of the level of seriousness attached to the issue by looking at the number of inspections done, cases filed in the court and cases reaching the stage of conviction. (Bodies/Centres: A genetic counselling centre, genetic laboratory, genetic clinic, ultrasound clinic, imaging centre, nursing home, hospital, institute or any other place where machines or equipment capable of detecting the sex of foetus is used) 3

12 Analysis of Affidavits In response to the Supreme Court order dated September 16, 2014, following affidavits were reviewed: Chhattisgarh November 14, 2014 Delhi undated Gujarat December 6, 2014 Haryana undated Himachal Pradesh October 17, 2014 Himachal Pradesh (Supplementary Affidavit) December 8, 2014 Madhya Pradesh November 22, 2014 Maharashtra November 13, 2014 Odisha January 19, 2015 Rajasthan October 14, 2014 Uttar Pradesh November 19, 2014 Tamil Nadu October 11, 2014 In response to the Supreme Court order dated November 25, 2014, following affidavits were reviewed: Bihar January 7, 2015 Delhi December 11, 2014 Punjab December 4, 2014 Tamil Nadu December 10, 2014 Union of India December 8, 2014 In response to the Supreme Court order dated February 18, 2015, following affidavits were reviewed: Union of India April 9, 2015 In addition, the following affidavits were also reviewed: Bihar April 13, 2015 Bihar (objection to UoI Affidavit filed on April 9, 2015) April 28, 2015 Bihar September 11, 2015 Madhya Pradesh (in response to revised directions sought by petitioner) March 12,

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15 Introduction The significant gap in the number of girls born as compared to boys and also the declining child sex ratio in the country establish clearly that gender-biased sex selection is unabated. However, the Supreme Court of India has taken a serious note of this issue along with the non-implementation of the Pre-Conception and Pre- Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, after a public interest litigation was filed by the Centre for the Enquiry into Health and Allied Themes (CEHAT). Another PIL in the name of Voluntary Health Association of Punjab (VHAP) is also currently pending in the Apex Court. The court in this matter has noted that the discrimination against girl child still exists in the Indian society due to various reasons which has its roots in social behaviour and prejudices against the girl child, and also due to the evils of the dowry system still prevailing in the society. The declining sex ratio at birth and child sex ratio in most parts of the country lead to an irresistible conclusion that the practice of gender-biased sex selection with misuse of the pre-conception and pre-natal diagnostic techniques is widely prevalent. The Parliament of India enacted the Pre- Conception and Pre-Natal Diagnostic Techniques (PCPNDT Act) which has its roots in Article 15(2) of the Constitution of India. The Parliament was fully conscious of the fact that increasing imbalance between men and women leads to increased crime against women, trafficking, sexual assault, polygamy, etc. Unfortunately, the facts also reveal that perpetrators of the crime belong to the educated middle class who strangely often do not perceive the gravity of the crime. IN RECENT YEARS OVER 2,000 COURT CASES HAVE BEEN FILED IN THE COUNTRY THOUGH MANY GAPS REMAIN TO BE ADDRESSED 7

16 The Supreme Court, as early as in 2001, in the Centre for Enquiry into Health and Allied Themes v. Union of India (2001) 5 SCC 577 case had noticed the misuse of the Act and had given various directions for its proper implementation. Non-compliance of various directions was again noticed by the Court in the Centre for Enquiry into Health and Allied Themes v. Union of India (2003) 8 SCC 398 case and the Court gave various other directions. Having noticed that those directions as well as the provisions of the Act are not being properly implemented by the states and union territories, an order was issued on January 8, 2013, directing personal appearance of the Health Secretaries of the States of Punjab, Haryana, National Capital Territory Delhi, Rajasthan, Uttar Pradesh, Bihar and Maharashtra in the court, to examine what steps they have taken for the proper and effective implementation of the provisions of the Act as well as on the various directions issued by the Apex Court. Even though the Union of India has constituted the Central Supervisory Board and most of the states and union territories have constituted State Supervisory Boards, Advisory Committees and appointed Appropriate Authorities under the Act, their functioning is far from satisfactory. The 2011 Census of India, published by the Office of the Registrar General and Census Commissioner of India, shows a decline in the child sex ratio in many states of India from The Sample Registration Survey (SRS) Statistical Report published by Census of India also presents a grim picture in relation to the sex ratio at birth in bigger states like Delhi, Punjab, Haryana, Rajasthan and Uttar Pradesh. The above statistics and report indicates that the provisions of the Act are not being properly and effectively implemented. In many states there has been no effective supervision or follow up action in order to achieve the object and purpose of the Act. After a Public Interest Litigation (PIL) was filed in the Supreme Court in the year 2000, probably the first case under the Act was filed in 2001 in Palwal district of Haryana which had resulted in conviction in As the review of affidavits reveals, since then filing of court cases have picked up speed and in recent years over 2,000 court cases have been filed in the country though a number of gaps remain to be addressed. Monitoring and inspection of centres by authorities is an area that needs special attention. In some of the states, authorities under the Act, seldom monitor the misuse of pre-natal diagnostic techniques for determination of the sex of the foetus. The Union of India had filed an affidavit in September 2011 giving details of the prosecutions under the Act and the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 (for short the Rules ), up to June The figures in the chart as well as the data made available by various states, depicts a sorry and an alarming state of affairs. The details made available to the Supreme Court clearly demonstrate lack of proper supervision and effective implementation of the Act by various states. AN ANALYSIS OF AFFIDAVITS In this chapter, we have analysed the affidavits filed by the state governments of 13 states in this matter. We have particularly used the following three indicators to draw conclusions, data and inferences from the affidavits filed by the different states. 1. Monitoring and inspections 2. Filing of court cases 3. Action initiated by State Medical Councils 8

17 Based on an analysis of the submissions made by various states in their affidavits, some of the preliminary findings are: OVERALL OBSERVATIONS The affidavits filed by the states show that there have been around 43,616 inspections conducted/ centres inspected across the 13 states. Registrations of over 1,884 centres have been suspended/cancelled. A total of 1,765 ultrasound machines have been sealed/seized for different violations. Over 91 medical professionals have faced action by their respective State Medical Councils wherein their names have been removed or suspended from the rolls of the Council and another 38 medical practitioners have been reprimanded. Though around 2,083 court cases have been filed under the Act in all the 13 states, it is seen that convictions have been arrived only in 11 per cent of the cases (224 convictions). With the Supreme Court closely monitoring the implementation of the PCPNDT Act in India and clearly viewing it as a critical concern, it can definitely be said that state governments are now OVER 91 MEDICAL PROFESSIONALS HAVE FACED ACTION BY THEIR RESPECTIVE STATE MEDICAL COUNCILS viewing the issue of declining child sex ratio seriously. It can also be seen from the various affidavits that the implementation, monitoring and reporting of data varies from state to state and speaks volumes about the status in the respective states. It is unfortunate that even though the Supreme Court had sought the data in a particular format, the ways of reading, interpreting and reporting differs from one state to the other both quantitatively as well as qualitatively. It is untoward that even though the states were asked to share information in a uniform format, the affidavits lack uniformity in information, content and style. It will not be wrong if it is said that in the case of some states, they have completely ignored the format and the specific information asked and have submitted information that is generic and not to the point. This may lead to the inference that these states did not have the CONVICTIONS HAVE BEEN ARRIVED ONLY IN 11 PER CENT OF THE CASES specific data they were asked for. Thereby, it can be said that the law is not being properly implemented in these states or a benefit of doubt can be given to them by inferring that the states did not understand the information that the Supreme Court was seeking and hence failed to submit the data required. It may also be seen that some states such as Haryana and Rajasthan are good in documenting the work done on the law and hence were able to submit detailed information, while other states such as Bihar and Tamil Nadu lack in documentation work and hence have not been able to submit the details clearly and vividly. In the affidavit submitted by Bihar on April 25, 2015, about the details of the district-wise court cases filed, the information is incomplete. AROUND 2,083 COURT CASES HAVE BEEN FILED UNDER THE ACT IN ALL THE 13 STATES 9

18 SOME ENCOURAGING STEPS IN THE RIGHT DIRECTION! Though the affidavits filed by many states do not reveal much, a few of the states have indicated constructive actions by the administration and legal authorities in filing and dealing with cases under the PCPNDT Act. DELHI MADHYA PRADESH Some positive trends have been seen in the national capital Delhi. There is the example of a case filed by the District Appropriate Authority against an author and publisher for advertisements assuring the birth of a son. In yet another good step, at a State Supervisory Board (SSB) meeting in Delhi, the Director of Prosecution was involved in SSB meetings to give support and inputs in legal areas. The prosecution in Delhi identified a few reasons for cases not being fasttracked in the state, some of them being lack of legal assistance to District Appropriate Authority, frequent transfers of Assistant Public Prosecutor (APP) and long dates of hearing in the court. The Director of Prosecution in one of the meetings has emphasised on the need for a fast track court in each district under a female Sessions Judge. Involving the Director of Prosecution in the SSB meetings is an exceptionally good step and can show the way to convergence if the intent is to strictly implement the Act in its true spirit. In Madhya Pradesh, given the low number of inspections conducted, efforts have been made to seek information from the public by promising them an award of Rs 50,000 in cash if a challan is issued on the basis of the information provided and another Rs 50,000 on conviction. In one of its meetings held on July 28, 2014, the SSB awarded Rs 50,000 to a public spirited person for helping the department register two cases under the Act in Gwalior. RAJASTHAN It is encouraging to note that the State Appropriate Authority (SAA), Rajasthan, is the only authority that has filed 23 cases against manufacturers, sellers and dealers for failure to provide information before selling their ultrasound machines and this has resulted in seven convictions. In another landmark action, 150 ultrasound machines have been ceased to prevent its misuse in the absence of an authorised person. HARYANA Thirteen persons have been awarded under incentive for informer scheme in the last two years ( ) and out of them three persons were awarded Rs 50,000, Rs 30,000 and Rs 20,000 in Gurgaon, Jhajjar and Kaithal districts respectively. ISSUES OF CONCERN Unfortunately, the affidavits filed by some states reveal trends which are dangerous and need further examination. It has been observed that most court cases have been filed on one particular date in Bihar, a trend showing bulk case filing. While most of the cases were filed in East Champaran on May 31, 2013; in Siwan, seven cases were filed on September 29, 2013, seven on June 1, 2013, and five on June 20, Another step taken in Rajasthan is the setting up of special police station in the form of PCPNDT Bureau of Investigation (PIB) under the Medical and Health Department at Jaipur. It is important to mention here that the police have no role to play under the PCPNDT Act. Any investigation by police in any matter related to violation of the provisions of the Act and Rules may further complicate the matter. Similarly, in one particular district of Delhi, the District Appropriate Authority hired the services of one particular private lawyer for all the cases. The practice of hiring private lawyers is a positive trend, but surprisingly there are not many cases of convictions in the district despite hiring a private lawyer. Hence this development/ redressal mechanism needs to be critically examined from transparency point of view. In no other districts has this trend of MOST COURT CASES HAVE BEEN FILED ON ONE PARTICULAR DATE IN BIHAR, A TREND SHOWING BULK CASE FILING 10

19 hiring private lawyers been seen and most of the cases are being dealt by the state prosecutor. Wherever relevant, the cases filed in Delhi under the PCPNDT Act have also referred to sections from the MTP Act, and especially in those cases where it was found that the centre was not registered under the PCPNDT Act and an ultrasound was found to be done before the abortion. The use of the provisions of the Medical Termination of Pregnancy (MTP) Act in Delhi needs to be reviewed here particularly because abortion is legal under certain circumstances in the country and all abortions are not done for the reason of sex selection. Again, the State Supervisory Board in Delhi has suggested in one of its meeting that the District Appropriate Authority (DAA) should secure services of Police Department in prosecuting violators of the Act and file FIR in all cases of violation, and that the cases should be taken up together under CrPC and PCPNDT Act. In an instance in Bihar, inspection was done on April, 2, 2013, and court case was filed on April 4, 2013, only within two days! In many instances in Siwan district, court cases were filed on the same day the centres were inspected. In another instance, as mentioned in the affidavit, a court case was filed five days before the centre was inspected. Another case in point is IN 52 CASES IN RAJASTHAN THE CONVICTED PERSONS HAVE BEEN SET FREE UNDER PROBATION FOR GOOD CONDUCT of the 159 court cases in the state, about 10 centres were sealed and closed in Darbhanga district on May 14 and 30, This gives a sense of the authorities acting randomly or may be erratically, because of the pressure from the Supreme Court and that the seriousness to implement the Act is missing in the state. In Bihar, the implementation also varies from district to district. While implementation is taking place quite well in some districts (as per the data shown), in others it is completely lacking. The cases in the courts and the way they have been disposed off are also different from one district to the other. So if the affidavit reports punitive action in ten cases for example in the entire state, it is noted that all the ten cases are from just three districts. So while the courts in Buxar, Darbhanga and Jehanabad districts have pronounced punitive action, the courts in districts of Siwan, Vaishali, Gaya, Goplaganj and Nalanda have no cases where punitive action has been taken. In Madhya Pradesh, only a few court cases can be seen and strangely in the one and only case of conviction under Section 22 (one year of rigorous imprisonment and a fine of Rs 2,000) so far, the accused person was convicted on January 27, 2011, by the Chief Judicial Magistrate, Bhopal, and was granted stay order on imprisonment on the same day by the Additional Sessions Judge, Bhopal. While it is good to see that 67 cases in Rajasthan have resulted in the court giving HELP OF POLICE FOR PROTECTION DURING THE INSPECTION IS FINE BUT THEIR INVOLVEMENT IN THE INSPECTION PROCESS SHOULD BE DISCOURAGED a conviction order, it is sad that in 52 cases the convicted persons have been set free under probation for good conduct and not served any punishment. In several cases, the court has released the convicted person after due admonition (under the Probations of Offenders Act). The maximum punishment has been of two-year simple imprisonment (SI) with a fine of Rs 10,000 in two cases and the least has been one month SI and a fine of Rs 1,000. In two cases, the accused was detained till the rising of the court and was only penalised with Rs 1,000 fine. This clearly shows that the intent behind the law was not fully realised by the judiciary. In one of the SSB meetings held on August 31, 2013, in Odisha, it was discussed and decided that the help of the police officers will be availed by the inspection team during the course of enforcement and supervision of centres. Help of police for protection during the inspection is fine but their involvement in the inspection process should be discouraged. ABORTION IS LEGAL UNDER CERTAIN CIRCUMSTANCES IN THE COUNTRY AND ALL ABORTIONS ARE NOT DONE FOR THE REASON OF SEX SELECTION 11

20 INSPECTION & MONITORING It is amply clear from the affidavits that the implementation of the Act has picked up only from 2012 onwards and prior to this (since 2001), there were not many actions taken in most states. The number of inspections by National Inspection and Monitoring Committee (NIMC) and various district authorities has grown up in three-five years and action has been taken on such inspections. Inspections were not a norm or seen as a priority in by any state and this shows the lack of seriousness in implementing the Act in all these states. The analysis of the affidavits clearly establishes that states started rising to the needs of this issue only after the PIL was filed in the Supreme Court. While in Uttar Pradesh, out of 4,837 centres, 1,898 were inspected and 246 suspended after inspection, Rajasthan has carried out 6,533 inspections and sealed 357 registered clinics and 252 machines. In Haryana, 1,523 centres were registered and 18,946 inspections were conducted from 2001-June A total of 272 machines have been sealed/ seized and 441 registrations have been cancelled or suspended during the same period. In Chhattisgarh, there were 582 registered centres in the state (by March 2013) and a total of only 17 inspections were carried out in the quarter January- March of 2013 in two of the districts. Subsequently, the number of centres increased to 633 and only 22 inspections were done in the quarter October- December 2014, in two of the districts. In Gujarat, there are a total 4,506 centres, out of which only 456 ultrasound machines have been sealed after inspections. Many inspections seem to have been done in Punjab about 3,762 in , 4,077 in and 2,598 in Accordingly, 48 registrations have been suspended in , 40 in and 23 in Out of 9,021 centres (registered up to June 2014) in total and 5,988 active ones in Maharashtra, 428 ultrasound machines have been sealed, registration of 152 centres have been cancelled while the registration of 142 centres have been suspended. Due to lower number of inspections in Madhya Pradesh, the affidavit says that several government orders were issued instructing concerned authorities to inspect at least five centres every week and that 100 per cent inspection should be conducted within three months. But it is not clear from the information given in the affidavit by Madhya Pradesh whether the orders were followed. THE AFFIDAVITS CLEARLY ESTABLISH THAT STATES STARTED RISING TO THE NEEDS OF THIS ISSUE ONLY AFTER THE PIL IN THE SUPREME COURT WAS FILED In Delhi, finalisation and use of common uniform inspection format that objectively captures violations for successful prosecution has been developed. At a meeting of the SSB on February 15, 2012, it was shared that a common format has been shared with all districts along with dos and don ts of inspection which has also been published in the Delhi Medical Association (DMA) bulletin. During , a total of 18 complaints were attended by the State Inspection and Monitoring Committee (SIMC) itself. Further 17 ultrasound machines were sealed and four court cases filed. In Bihar, registrations of 212 clinics were cancelled and 139 clinics sealed; 72 clinics were suspended, while 1,449 out of a total 1,621 centres were inspected. In Himachal Pradesh, there are reports of two cases of machines being suspended on a temporary basis. In its meeting of the SSB on January 16, 2012, and also October 18, 2012, it was recommended that the frequency of inspections should be increased. But 100 per cent inspection of all registered clinics was not done even by In Odisha, ten ultrasound machines/centres were sealed after expiry of the registration and court cases were filed for unauthorised use of such machines. In another five cases, registrations were cancelled and court cases were filed against unqualified persons operating the machines. 12

21 CASES IN COURT, PROSECUTION AND CONVICTIONS The variance seen in simply the number of court cases filed so far is interesting and speaks volumes about the level of implementation and seriousness shown on this issue at the state level. This is not due to lack of violations as inspections including those done by NIMC reveal violations do exist. In most of the states, while the cases are in the trial court, the High Court of the state issues a stay order which leads to delay in prosecution. Unless the High Court withdraws the stay order, the trial courts are not able to proceed. This could be a strategy employed by the accused to delay prosecution. All that they do is file an appeal in the High Court and seek a stay on the proceedings of the trail court and then forget the case. Given the fact that the Supreme Court of India has passed directives for speedy trial of the cases, here the High Courts could probably take a serious note of this matter and grant stay of proceedings selectively and only if required. Many cases in Delhi are delayed because of such issuance of stay order by the High Court. An analysis of the 44 court cases pending in various Delhi courts shows that there are cases which were filed in 2002 and 2003 and are still pending in the court at the evidence stage. Such long delays of years cannot be justified by any legal system aware of the declining child sex ratio in the country. Most of the cases filed in Delhi (28 out of 44) are on grounds of non-maintenance of records and the Form-F not being filled in properly. Out of these 28 cases, eight are related to both non-registration and non-maintenance. There are cases for instance in Rohini Court (filed in 2010) where the Form-F is 100 per cent missing and the signature of the patient has been forged. CASES PENDING IN VARIOUS DELHI COURTS SHOW THAT THERE ARE CASES WHICH WERE FILED IN 2002 AND 2003 AND ARE STILL PENDING Delhi has not used the strategies and techniques like decoys used in Haryana. Therefore, cases related to communicating the sex of foetus have not been filed in Delhi. Haryana has records of 41 cases of sex determination carried out in the centres. In Delhi, there has been a Steering Committee at the state level, chaired by the State Health Secretary to oversee and guide the progress of the already registered ongoing cases. At many of the State Supervisory Board meetings, it has been emphasised that there needs to be better coordination between the Chief Public Prosecutor and District Appropriate Authority on individual court cases for better follow up and that regular contact is maintained between the Appropriate Authority, Chief Public Prosecutor and APP. Efforts have also been made by the Appropriate Authority to monitor court cases on a monthly basis. At a SSB meeting held on May 12, 2009, the Minister had advised taking services of lawyers on the lines of rape cases for giving support to the Appropriate Authority at both the state and district level. This was again reiterated at the meeting on August 5, In terms of some of the challenges to court cases in Delhi, it has been observed that a major problem with the court cases is the frequent change of the APP, making perusal and follow up very difficult. In Bihar, 159 court cases have been filed. While 132 cases are pending, punitive action has been taken in seven cases and no action has been taken in other 19 cases. In one case the information is not available. It is also not clear from the affidavit as to what the punitive action is, whether it is conviction, fine or something else. A discrepancy was noted pertaining to the figure cited for court cases in two different affidavits filed by Bihar. A total of 183 court cases were reported earlier in the affidavit filed on April 13, In Tamil Nadu, there are only three court cases and all are pending: two are under trial while one is under process. But the affidavit submitted by the Union of India on February 18, 2015, in Supreme Court reports nine court cases with three convictions in the state. HARYANA HAS RECORDS OF 41 CASES OF SEX DETERMINATION CARRIED OUT IN THE CENTRES 13

22 In Uttar Pradesh, 131 cases have been filed so far. Activism has led to registration of nine FIRs filed by a social worker Sanjay Singh in Kanpur district. Till 2014, seven cases were pending in Chhattisgarh, of which five cases were filed in 2007 and the remaining two cases were filed in There are a total of 102 court cases filed from 2001 to September 2014 (12 cases were filed during April 13-September 14) in Haryana. Out of these, 27 cases are for non-registration, 27 cases for records not maintained and seven cases for advertising which was against the Act. There are 41 cases of sex determination carried out in the centres. Four of the twelve cases filed during April 2013 to September 2014 have ended in acquittals, seven are pending at different stages and conviction has happened in one case of Dr Anand Prakash (decided on January 28, 2014) giving three years imprisonment and Rs 10,000 fine for operating an unregistered ultrasound centre in Sonipat. Of the 54 persons convicted in the state from 2001-June 2014, 33 are doctors. Of the 24 convicted during April 2013-June 2014, 11 are doctors. And of the 33 doctors convicted in the state, in one case conviction was for one day and rigorous imprisonment was for three years in a few cases. In Himachal Pradesh, there is only one case mentioned in the affidavit in the entire state for non-registration of clinic. The case started on May 28, 2008, and was decided on April 1, 2013, with conviction of one year and a fine of Rs 10,000. THERE WAS CONVICTION IN ONE CASE IN MADHYA PRADESH BUT THE PERSON WAS ACQUITTED ON THE SAME DAY The Madhya Pradesh government is conscious of the fact that the number of court cases (18 cases are pending in court) are low and the State Supervisory Board has noted that this situation is not proper. There was a suggestion to take services of sensitive advocates in each district to file the court cases. One is not sure if this was actually done and whether it was successful or not. There was conviction in one case but the person was acquitted on the same day. There have been 595 court cases filed in Rajasthan as stated in the affidavit, out of which charges have been framed in 227 cases and Rajasthan Medical Council (RMC) informed about the charges being IN PUNJAB, THERE HAVE BEEN 129 COURT CASES OUT OF WHICH 91 HAVE RESULTED IN ACQUITTALS AND 29 CASES HAVE ENDED IN CONVICTIONS. framed in 127 cases. Of this, 67 cases have ended in convictions. Out of the total 595 cases, 529 cases are for non maintenance of records, 57 for communicating the sex of the foetus, and 15 for non registrations. Out of the convictions in 67 cases in Rajasthan, 52 cases have ended in leaving the convicted doctor free for probation of good conduct and released in a few cases after due admonition. The maximum punishment has been two-years of SI with fine of Rs 10,000 in two cases and the least has been one month SI and Rs 1,000 fine. There have been 305 court cases in Gujarat, out of which 154 have been disposed off. In Punjab, there have been 129 court cases out of which 91 have resulted in acquittals and 29 cases have ended in convictions. Likewise, 496 court cases have been filed in Maharashtra out of which 155 have been decided leading to convictions in 64 cases and imprisonment of 52 doctors. Penalty has been imposed on 16. In 21 cases of acquittal, the state has filed appeals against the acquittals. It is interesting to note that there are 203 cases filed by the doctors in the High Court of Mumbai against the state, of which there are 84 pending while 119 have been decided. The state has contested 14 cases in Supreme Court where two are still pending. Odisha has reported 46 court cases in the state and convictions in only three cases. Thirty cases have been filed for non-maintenance of records and the registrations of those centres were also cancelled. Out of these 46 cases, doctors were convicted in three cases. All three convictions were reported from Jharsuguda district. ALL THREE CONVICTIONS REPORTED IN ODISHA ARE FROM JHARSUGUDA DISTRICT 14

23 ACTION BY STATE MEDICAL COUNCILS It should be noted here that action against a total of 91 medical practitioners has been initiated only by six State Medical Councils (SMC) out of the thirteen reviewed. Affidavits reveal that most of cases are not being reported to the SMC about the charges framed against the doctors and the convictions. And in most cases even if they get the information, they do not act upon it, except in a few cases mentioned below. Affidavits for rest of the states do not reveal the action taken by their SMC. ACTION AGAINST A TOTAL OF 91 MEDICAL PRACTITIONERS HAS BEEN INITIATED ONLY BY SIX STATE MEDICAL COUNCILS OUT OF THE THIRTEEN REVIEWED In Delhi, Delhi Medical Council (DMC) vide its order of October 21, 2014, has removed the name of Dr Raj Singh Tewatia from the register of DMC for five years and has reprimand and punished two doctors for unethical practices detected during inspection. In the case of these two doctors the nature of punishment has not been spelled out in the affidavit. The Madhya Pradesh Medical Council has cancelled the license of three doctors but in one case, the doctor managed to revoke the cancellation by appealing in the High Court. The Haryana State Medical Council has been very active and has twelve cases of suspension of registration and cancellation, five of which were suspended/cancelled during April 2013-June The cancellation has been done for five years in all cases and suspension till disposal of the case. In two cases where the doctors had registered in Uttar Pradesh, letters were sent to Uttar Pradesh Medical Council (UPMC) and subsequently the registrations were suspended. In one of the case, the name of the doctor has been suspended by UPMC after conviction. The medical councils have taken extraordinary steps where registrations have been cancelled by Madhya Pradesh Medical Council (MPMC), Delhi Medical Council (DMC) and Punjab State Medical Council for doctors convicted in Haryana. In six cases, no action could be initiated by Haryana because registration certificate of the convicted medical practitioners were not available. In three other cases, letters were sent on the same ABOUT 48 CASES HAVE NOT BEEN REPORTED TO THE RAJASTHAN MEDICAL COUNCIL DUE TO STAY OF PROCEEDINGS BY THE COURTS date (November 25, 2013) to the Registrar, Medical Council of India (MCI) for suspension/cancellation of medical registration but no action has been taken yet. The Rajasthan Medical Council has been informed in 127 cases, out of which it has suspended registration of 21 doctors. About 48 cases have not been reported to the RMC due to stay of proceedings by the courts and out of the 67 cases of conviction, the RMC was informed about 32. The Maharashtra Medical Council has suspended the registrations of 49 doctors and two of the doctors have been removed for five years, while warning letters have been issued to 38 doctors. The Homeopathic Council of the state has also suspended the registration of six doctors, while the Indian Medical Council has also suspended registrations of three doctors from Maharashtra. The Odisha Council of Medical Registration was reported in all three cases of conviction by the State Appropriate Authority. Subsequently, registrations of all the three doctors were suspended for a period of five years in However, the action of the Council has been stayed by the High Court of Orissa. THE REGISTRATIONS OF ALL THE THREE DOCTORS WERE SUSPENDED FOR A PERIOD OF FIVE YEARS IN HOWEVER, THE ACTION OF THE COUNCIL HAS BEEN STAYED BY THE HIGH COURT OF ORISSA 15

24 16

25 A COMPILATION OF DATA ON COURT CASES, INSPECTIONS AND ACTION TAKEN BY STATE MEDICAL COUNCILS 17

26 NUMBER OF REGISTERED CENTRES West Champaran Sheohar < > 201 Gopalganj Siwan East Champaran Saran Sitamarhi Muzaffarpur Vaishali Madhubani Darbhanga Samastipur Saharsa Supaul Madhepura Araria Purnia Kishanganj Buxar Bhojpur Patna Begusarai Khagaria Katihar Kaimur Rohtas Arwal Aurangabad Nalanda Jehanabad Gaya Nawada Munger Bhagalpur Lakhisarai Banka Jamui Sheikhpura FIVE DISTRICTS WITH MINIMUM NUMBER OF REGISTERED CENTRES 1 LAKHISARAI 2 BANKA 3 SEOHAR 4 ARWAL 5 SHEIKHPURA FIVE DISTRICTS WITH MAXIMUM NUMBER OF REGISTERED CENTRES 1 PATNA 2 MUZAFFARPUR 3 DARBHANGA 4 EAST CHAMPARAN 5 WEST CHAMPARAN

27 BIHAR MONITORING AND INSPECTION REGISTRATION OF CENTRES As per the information shared by the Department of Health, Government of Bihar, in its affidavit submitted in the Supreme Court, in April 2015, a total of 1,621 ultrasound centres have been registered under the PCPNDT Act across the 38 districts of the state. Of the 38 districts, two districts namely Patna (339) and Muzaffarpur (122) have the maximum number of centres registered under the Act, followed by Darbhanga (86), East Champaran (79) and West Champaran (62). On the other hand, the five districts which have less number of centres registered include Lakhisarai (4), Banka (5), Sheohar (5), Arwal (6) and Sheikhpura (9). DISTRICT-WISE REGISTRATION OF CENTRES Sl. Districts No. of registered centres 1 Araria 31 2 Arwal 6 3 Aurangabad 36 4 Banka 5 5 Begusarai 45 6 Bhagalpur 47 7 Bhojpur 36 8 Buxar 15 9 Darbhanga Gaya Gopalganj Jamui Jehanabad Kaimur Katihar Khagaria Kishanganj Lakhisarai 4 19 Madhepura Madhubani 43 Sl. Districts No. of registered centres 21 Munger Muzaffarpur Nalanda Nawada Patna Purnia Rohtas Saharsa Samastipur Saran Sheikhpura 9 32 Sheohar 5 33 Sitamarhi Siwan Supaul Vaishali East Champaran West Champaran 62 Total 1,621 Source: Affi davit, Department of Health, Government of Bihar 19

28 INSPECTIONS OF CENTRES It appears from the data that inspections by the District Appropriate Authorities were largely carried out in 2013 and a few in 2012 and The number of inspections cited by the state compared to the number of centres registered appears to be less. In 14 districts, the total number of inspections done is less than the number of centres registered. This means that some of centres were not inspected even once over a period of three years. DISTRICT-WISE INSPECTIONS Sl. Districts No. of centres inspected 1 Araria 33 2 Arwal 6 3 Aurangabad 38 4 Banka 5 5 Begusarai 56 6 Bhagalpur 31 7 Bhojpur 40 8 Buxar 38 9 Darbhanga Gaya 9 11 Gopalganj Jamui Jehanabad Kaimur Katihar Khagaria Kishanganj Lakhisarai Madhepura 2 20 Madhubani Munger Muzaffarpur Nalanda 2 24 Nawada Patna Purnia Rohtas Saharsa Samastipur Saran Sheikhpura 9 32 Sheohar 5 33 Sitamarhi Siwan Supaul Vaishali East Champaran West Champaran 40 Total 1,449 Source: Affi davit, Department of Health, Government of Bihar 20

29 SUSPENSION OR CANCELLATION OF REGISTRATION The data on suspension and cancellation of registration in Bihar shows that as on April 25, 2015, registrations of 16 centres granted under the PCPNDT Act were suspended and of 159 centres cancelled. The suspension or cancellation of registration depends on the level of offence committed by the centres and this is a strong indicator for monitoring by the Appropriate Authority in the state. The next step after the suspension or cancellation is filing of cases with the Judicial Magistrate First Class (JMFC). As per the affidavit, however, not all the matters related to suspension and cancellation have been reported to the JMFC in 11 districts. The districts with maximum cases of suspension/cancellation but minimum number of court cases includes Muzaffarpur where only three court cases have been filed against 40 cases of cancellation of registration of centres, followed by Purnia where only three court cases have been filed against the 23 cases of cancellation and suspension. In four districts, no court case has been filed although registration of the centres have been both suspended and cancelled. The data given in the affidavit reveals another practice where court cases have been filed without suspension or cancellation of registration of the centres for violating the provisions of the Act and Rules. This practice has been observed in Gopalganj, Jamui, Jehanabad, Katihar, Lakhisarai, Nawada, Patna, Vaishali, East Champaran and West Champaran districts where 64 court cases have been filed without any suspension or cancellation. SEAL/SEIZURE OF ULTRASOUND MACHINES So far, 104 machines have been sealed/seized under the PCPNDT Act in Bihar of which maximum ultrasound machines were sealed/seized in East Champaran (30), followed by Nalanda (10) district. The district-wise data on seal/seizure of machines in Bihar also discloses certain strange practices. For instance, registration of none of the centres has been suspended or cancelled in East Champaran, yet 30 cases have been filed in the court of Chief Judicial Magistrate (CJM)/First Class Magistrate (FCM). In another instance, the ultrasound machine of only one centre has been sealed/seized in Muzaffarpur district but registration of over 40 centres have been cancelled; and only eight court cases have been filed. Similarly, the practices related to suspension/cancellation of registration, seal/seizure of machines and filing of court cases in other districts too are questionable. COURT CASES STATUS OF COURT CASES As per the latest affidavit filed in September 2015, a total of 159 court cases have been registered in the court of CJM/ FCM under the PCPNDT Act across the 38 districts of Bihar. Out of these, seven cases have reached the conviction stage and 132 cases are pending in different courts, while 19 cases have been closed with no punitive action. The status of the one case filed in Patna is not known. TOTAL COURT CASES NO. OF CASES DECIDED/CLOSED/DISPOSED OFF ACQUITTAL* CONVICTION *Acquittal here means number of cases decided with no punitive action 21

30 FILING OF COURT CASES If we look at the filing of court cases in each district of Bihar, we find that cases have been filed in only 23 districts while in the remaining 15 districts no court cases have been registered. The districts are: Araria, Arwal, Banka, Buxar, Gaya, Khagaria, Madhepura, Munger, Rohtas, Saharsa, Samastipur, Saran, Sheikhpura, Sheohar and Sitamarhi. The maximum number of cases have been filed in East Champaran district (30), followed by Siwan (25) and Gopalganj (16). DISTRICT-WISE STATUS OF COURT CASES Sl. Districts Court cases Ongoing/pending Conviction court cases 1 Aurangabad Begusarai Bhagalpur Bhojpur Darbhanga East Champaran Gopalganj Jamui Jehanabad Kaimur Katihar Kishanganj Lakhisarai Madhubani Muzaffarpur Nalanda Nawada Patna Purnia Siwan Supaul Vaishali West Champaran Total Source: Affidavit filed by Department of Health, Government of Bihar, in September 2015 District-wise data on court cases suggests that the number of districts with no court case in the state is 15. While the number of districts with five or less court cases is 13 and the number of districts with more than five court cases is only ten. The absence of court cases in a given district does not clearly indicate whether inspections have been or have not been conducted. Similarly, the absence of court cases does not mean that there has been no violation of the Act and Rules in the district. NO. OF DISTRICTS WITH NO COURT CASE NO. OF DISTRICTS WITH FIVE OR LESS COURT CASES NO. OF DISTRICTS WITH MORE THAN FIVE COURT CASES 22