SC: Giving Preference to Male Child is Against Constitutional Duty to Renounce Practices Derogatory to Women’s Dignity

Author-Aditi Goyal, [NALSAR University of Law, Hyderabad]

The Supreme Court bench comprising Justice Vineet Saran and Justice Arun Mishra observed that preferring male child over female child violates Article 39(A) of the Indian Constitution and is against the Article 51A (e)’s mandate which casts upon citizens, a Constitutional duty to renounce practices derogatory to the dignity of women.

Article 39 (A) of the Indian Constitution states “that the citizens, men and women equally, have the right to an adequate means to livelihood.”

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Article 51A (e) enumerates the duty “to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women.”

The bench observed that the female foeticide is the most immoral, inhumane and ant-social act while upholding the constitutional validity of Section 23 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sec Selection) Act, 1994.

Section 23 of the Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act, 1994 enumerates the offences and penalties regarding female foeticide.

The court took notice that skewed sex-ratio is the main cause of increase of incidents of violence against women along with a greater practice of bride-buying, trafficking etc. The bench said that the PCPNDT Act, conceived in light of this skewed sex-ratio of India and to avoid the repercussions of the same, is a social welfare legislation and observed, in this context, “the mischief sought to be remedied is grave and the effort is being made to meet the challenge to prevent the birth of the girl child. Whether Society should give preference to make child is a matter of grave concern. The same is violative of Article 51A (e) which casts a duty on citizens to renounce practices derogatory to the dignity of women.”

The court stated that the rigorous implementation of the Act is an edifice on which the task of saving the girl child rests.

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Apart from the above, another essential observation made by the bench pertaining to the judgement was that in reverse order relating to gender justice, there can be a legislative provision for imposing burden of proof. While citing examples of such reserved burden of proof in some statutes, the bench mentioned Section 29 and Section 30 of the Protection of Children from Sexual Offences (POCSO) Act and also Sections 113A, 113B and 114A of the Indian Evidence Act.

The bench stated that, “these provisions are a clear indication of the seriousness with which crimes against women and children have been viewed by the Legislature. It is also evident from these provisions that due to the pervasive nature of these crimes, the Legislature has deemed it fit to employ a reversed burden of proof in these cases. The presumption in the proviso to Section 4(3) of the Act has to be viewed in this light.”

The Proviso to Section 4(3) was challenged on the ground that it imposes reversed burden of proof, which makes it compulsory that the person carrying out ultrasonography on a pregnant female shall keep complete record as may be prescribed, and any inaccuracy or deficiency found therein shall amount to contravention of the provisions of Section 6 unless contrary is proved by the person conducting the ultrasonography.

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