| 1
Writ petition No. 6523 of 2011(PIL)
HIGH COURT OF MADHYA PRADESH,
BENCH AT GWALIOR
*********************************************
(DIVISION BENCH : HON. SHRI S.K.GANGELE
&
HON. SHRI BRIJ KISHORE DUBE, JJ)
[ WRIT PETITION NO. 6523 of 2011 (PIL)]
Smt. Yashi Jain
Vs.
The State of Madhya Pradesh & Others
Petitioner by : Smt. Ami Prabal and Shri Prabal
Solanki, Advocates.
Respondents-State by : Shri MPS Raghuvanshi, Additional
Advocate General.
O R D E R
( Passed on the 22nd March, 2012 )
(Whether approved for reporting)
As per Shri Gangele, J :
This pro bono publico petition has been filed in regard to
child rights and also for issuance of directions to prevent female
infanticide. The petitioner has also sought instructions for
improvement in male - female child sex ratio.
(2) The petitioner is a housewife and she has also been
working in a private institution. She filed this petition in public
(3) The petitioner pleaded that the girl child has not been
given proper care and attention by the society. The mindset of the
society has not been changed and discrimination against girl child
still prevails in the society. There has been a decline in male-female
child sex ratio. It was 964 female child : 1000 male child in 1961 in
the State of Madhya Pradesh, however it came down to 912 female
child :1000 male child in 2011. The Districts of Gwalior, Shivpuri,
Sheopur, Morena, Bhind and Datia are major sufferers. Hence, it is
necessary to take appropriate steps in this regard.
(4) The State Government has not taken appropriate steps
towards implementing the provisions of Pre-natal Diagnostic
Techniques (Prohibition of Sex Selection) Act, 1994 [hereinafter
referred to as “Act of 1994'''''''''''''''' ]. The petitioner has mentioned in the
petition an incident of death of a female child. She was admitted at
Kamla Raja Hospital, Gwalior on 07-09-2011. During investigation, it
was found that a black coloured cloth was inserted in her throat
deep up-to trachea. It was definitely an attempt to kill her. The black
coloured cloth was taken out from her throat. However, it was not
seized by the police. The girl child had been given back to the
custody of mother and father and subsequently, the girl child was
died.
(5) This Court vide an interim order dated 29/9/2011, directed
the Inspector General of Police (IGP) to conduct a proper inquiry.
(6) An interim application [ I. A. No. 7109/2011] has also
been filed by one, Ram Akhtyar Singh S/o. Shri Sardar Singh,
resident of Kalpi Bridge Colony, Paththar Wali Gali, Kalpi Road,
Gwalior. It is pleaded in the application that on 30th June, 2011, one
Smt. Anita W/o Banti @ Suryabhan Singh gave birth to a girl child in
the Community Health Centre, Gohad, District Bhind. Father and
mother did not want the girl child. Hence, Smt. Anita was forcibly
discharged from the hospital in the evening on same day and
thereafter the girl child was killed and was buried out side the village
Kharaua near old go-down in the morning of 1st July, 2011. After
getting the information, the applicant informed the aforesaid incident
to the Executive Magistrate (Tehsildar) Smt. Neena Gaur and SDOP,
Shri Khare on telephone and thereafter, the applicant also met with
SDOP, Gohad who had told the applicant to meet SHO Gohad,
Police Station Gohad. Mr. Damodar Gupta, SHO, Gohad told the
applicant to submit the report in writing. Then, the applicant
submitted the report in writing and thereafter informed Mahila & Bal
Vikas Vibhag. However, no action had been taken by the police.
Contrary to this, the police informed accused Banti @ Suryabhan
Singh and thereafter, accused Banti @ Suryabhan Singh and his
family members had taken the girl child out of the grave and her
body was destroyed. Later on, a case under Sections 302 and 201 of
Indian Penal Code was registered vide Crime No.164/2011 against
Banti @ Suryabhan Singh, Kamal and Banwar Singh at police station
Gohad, District Bhind. However, no effective steps had been taken
by the police to investigate the case properly. After the aforesaid
incident, in the year 2011 four male and 28 female children were
born in village Kharaua till date.
(7) The petitioner also filed an application (I.A.No.
7126/2011) for taking additional facts on record. In the aforesaid
application, the petitioner mentioned the fact about the death of two
girl child, one in Sheopur and another in Alirajpur. The petitioner
further pleaded that the police authorities have not investigated the
cases properly.
(8) The respondents/State authorities in their reply pleaded
that the police had taken proper steps in regard to death of girl child
and an enquiry had been conducted against In-charge, Station
House Officer Mr. Mukesh Tiwari Police Station Kampoo, District
Gwalior and Sub-Inspector, Ashok Kumar Sharma. A charge-sheet
has been issued against both the police personnel. It is further
submitted that a criminal case under Section 302 of IPC was
registered against accused Ram Baran and Bhuri Baghel and they
were arrested on 02-11-2011 and 04-11-2011. Grand-father, grandmother
and uncles have also been arrested on 24-01-2012 and
charge-sheet has also been filed. It is further stated that the
Inspector General of Police (IGP), Gwalior issued general directions
to all the police officers to take effective steps in the cases of death
of girl child where a suspicion arises about the death of girl child.
(9) The Parliament has enacted an Act, named as Pre-natal
Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994
[ hereinafter referred to as “ Act of 1994'''''''''''''''' ]. The aim and object of the
Act of 1994 is to prevent misuse of pre-natal diagnostic techniques
for determination of sex of the foetus leading to female foeticide.
(10) The Hon''''''''ble Apex Court in the case of Centre For
Enquiry Into Health and Allied Themes (Cehat) and Others Vs.
Union of India and Others, reported in (2001) 1 SCC 577, issues
the following directions to the State Government:-
“1. All the State Governments/ UT Administrations
are directed to appoint by notification, fully
empowered appropriate authorities at district and
sub-district levels and also Advisory Committees to
aid and advise the appropriate authorities in
discharge of their functions ( re Section 17(5)]. For
the Advisory Committee also, it is hoped that
members of the said Committee as provided under
Section 17(6)(d) should be such persons who can
devote some time to work assigned to them.
2. All the State Governments/ UT Administrations
are directed to publish a list of the appropriate
authorities in print and electronic media in their
respective States/ UTs.
3. All the State Governments/ UT Administrations
are directed to create public awareness against the
practice of prenatal determination of sex and female
foeticide through advertisement in print and
electronic media by hoardings and other appropriate
means.
(4) All the State Governments/ UT Administrations
are directed to ensure that all State/ UT appropriate
authorities furnish quarterly returns to CSB giving a
report to the implementation and working of the Act.
These returns should inter alia contain specific
information about:
(I) survey of bodies specified in Section 3 of
the Act.
(ii) registration of bodies specified in Section 3
of the Act;
(iii) action taken against non-registered bodies
operating in violation of Section 3 of the Act,
inclusive of search and seizure of records;
(iv) complaints received by the appropriate
authorities under the Act and action taken
pursuant thereto;
(v) number and nature of awareness
campaigns conducted and results flowing
therefrom.”
(11) The aforesaid Act of 1994 also provides registration of all
bodies under the PNDT Act, namely, Registration of Genetic
Counselling Centres, Genetic Laboratories and Genetic Clinics. It
further provides maintenance of records by USG Centres Declaration
on each report that he /she has neither detected nor disclosed the
sex of foetus. Declaration of pregnant woman that she does not want
to know sex of the foetus. Report to be sent by 5th of every month to
appropriate authority. There are powers to the Appropriate Authority
to cancel registration or renewal of registration of institutions, if the
center is unrecognized.
(12) The Union of India has also framed Rules under the Act,
1994, named as Pre-conception and Pre-natal Diagnostic
Techniques (Prohibition of Sex Selection), Rules 1996 [hereinafter
referred to as ''''''''Rules of 1996”]. In accordance with the aforesaid
Rules of 1996, it is necessary to sent information by every
Sonography Centre or Clinic to the appropriate authority at once in
every month and record has to be kept and maintained as a register
in the custody of appropriate authority.
(13) Section 17 of the Act of 1994 prescribes Appropriate
Authority and Advisory Committee. As per Section 17 (5) of the Act
of 1994, the Central Government or State Government shall
constitute an Advisory Committee for each Appropriate Authority to
aid and advise the Appropriate Authority in discharge of its functions.
The relevant provisions of this Section are as under:-
“(5) The Central Government or the State
Government, as the case may be, shall constitute an
Advisory committee for each Appropriate Authority to
aid and advise the Appropriate Authority in discharge
of its functions, and shall appoint one of the members
of the Advisory Committee to be its Chairman.
(14) The Union of India also launched Integrated Child
Development Services [ ICDS] Scheme on 2nd October, 1975. It is a
programme for early child development and further the aim of
Scheme is to prevent malnutrition, morbidity, reduced learning
capacity and mortality.
The followings are the main objectives of the ICDS
Scheme:-
“i. to improve the nutritional and health status of
children in the age-group 0-6 years;
ii. to lay the foundation for proper psychological,
physical and social development of the child;
iii. to reduce the incidence of mortality, morbidity,
malnutrition and school dropout;
iv. to achieve effective co-ordination of policy and
implementation amongst the various departments to
promote child development; and
v. to enhance the capability of the mother to look after
the normal health and nutritional needs of the child
through proper nutrition and health education.
The following services have been provided under the
ICDS Scheme to fulfill the above objectives.
'''''''''''''''' i. supplementary nutrition,
ii. Immunization,
iii. health check-up,
iv. referral services,
v. pre-school non-formal education and
vi. Nutrition & health education.
(15) Under the aforesaid Scheme, Anganwadi Centres have
been sanctioned and Anganwadi Workers have been appointed by
the State Government. The Central Government has also made
budgetary allocation for the the aforesaid ICDS Scheme. As per the
aims and objectives of ICDS Scheme, it has been launched for
proper development of children.
(16) The Hon''''''''ble Supreme Court in the case of People''''''''s
Union For Civil Liberties Vs. Union of India and Others, reported
in ( 2009) 16 SCC 598, has observed as under:-
“ In respect of the Integrated Child Development
Scheme, directions were issued on 28-11-2011. It
seems that most of those who are covered by the
said order are not getting benefit under the said
Scheme. We have heard the submissions of Mr.
Gonsalves and perused the report submitted by the
Commissioners and the directions sought. From the
facts and figures that have been furnished to us, it
seems evident that there is a large number of
malnourished children between the age group of 0 to
6 years. These figures are based on the survey
conducted under the National Family Benefit Health
Scheme. The position is quite alarming. These
young children are the future of the nation. Further, it
appears that except Kerala and Tamil Nadu where
the benefit under the Scheme is said to be reaching
to about 50% of the children, in the rest of the
country the average seems to be below 25%. The
position in the States of Bihar, Uttar Pradesh,
Jharkhand and Uttaranchal seems to be quite
alarming. According to the survey for the period
2002-2003 the access to supplementary nutrition for
the children in Bihar reaches about 12.6% of those
who are otherwise covered by the scheme. Mr. Raju
Ramachandran, learned ASG prays for a short
adjournment to discuss the matter with the officials
concerned and make submissions on the directions
that may be issued to ensure compliance with the
order dated 28-11-2001.
As prayed, the case is adjourned to 29-04-2004.”
(17) In view of the aforesaid legal provisions, enactment and
constitutional provisions, in our opinion, this public interest litigation
filed by the petitioner is disposed of with the following directions:-
(I) That in case of death of female child in
womb it would be compulsory to all the nursing homes
and Government Hospitals to inform the fact about the
death of female child to the concerned Police Station.
(II) If there is any suspicion about the death of
female child then the Police Authorities shall
investigate the matter properly under the supervision
of Deputy Superintendent of Police and also submit
the report to the Superintendent of Police concerned.
(III) If any person informs the police concerned
about the death of female child then the identity of
such person be kept in secret and the police shall
investigate the matter.
(IV) A direction be also issued to all Anganwadi
Workers to keep records about the abortion or death of
female foetus and inform the same to the police
authorities or other authorities concerned.
(V) It is further directed that if in accordance
with provisions of Section 17(5) of the Act of 1994, an
Advisory Committee has not been constituted by the
State Government for aid to Appropriate Authority, the
said Committee shall be constituted.
(VI) The Appropriate Authority shall ensure of
receiving FORM H as per Rules of 1996 from all
Diagnostic Centres or Clinics, having registration
under the Act of 1994.
(VII) The State Government shall also consider
the development of proper mechanism in regard to
submission of information by Sonography Centres
through e-mail to the Appropriate Authority.
(VIII) The Collector(s) shall supervise work of
Integrated Child Development Services(ICDS) Scheme
and shall ensure that the benefit under the aforesaid
Scheme which is up-to 100% be reached to the
children.
(IX) The appropriate Government shall appoint
Member(s) of Juvenile Justice Board in accordance
with Section 4 of Juvenile Justice (Care & Protection of
Children) Act, 2000 for each district within the
jurisdiction of this Bench.
(X) The respondents shall further appoint Child
Welfare Committee in accordance with the provisions
of Juvenile Justice (Care & Protection of Children) Act,
2000 for each district within the jurisdiction of this
Bench.
(XI) These directions would be applicable to the
Districts which are under the jurisdiction of this Bench
and the State Government shall issue appropriate
circular or order to all the authorities of the Districts
under the jurisdiction of this Bench.
(XII) These directions shall be complied with
within a period of eight weeks'''''''' from the date of this
order and the Member Secretary, General
Administration Department or any person(s) authorized
by him shall file comprehensive affidavit in regard to
compliance of these directions before the Principal
Registrar of this Court within the period mentioned in
this order.
(18) Looking to the aforesaid facts and circumstances of the
case, in our opinion, it would be just and proper to award proper cost
to the petitioner. Hence, the petitioner shall be entitled to receive a
cost of Rs.5,000/- (Rupees five thousand only) from the respondents.
(19) With the aforesaid directions, the petition filed by the
petitioner in public interest, is disposed of.
(S.K.Gangele) (Brij Kishore Dube)
Judge Judge
mkb/- |