Updated: Sep 11, 2020
A slew of effective measures has been taken by the government in response to the COVID-19 outbreak in the country. Formed in the year 1994, the Pre-Conception and Pre-Natal Diagnostic Techniques Act, worked to protect India against the historical scourge it experienced. Pre-Natal Diagnostic techniques allowed prospective parents to determine if the unborn child was a female or male, in turn often, the female child in certain households were killed on birth or in the womb, in relation to the historical gender-based discrimination which is prevalent in the Indian society. The act in itself prohibits the complete disclosure of information pertaining to the pre-natal sex determination of a unborn child. In the current COVID-19 situation, post the varied response from the government in relation to various provisions, the Ministry of Health and Family Welfare, in a notification earlier this month, suspended certain provisions of the Pre-Conception and Pre-Natal Diagnostic Act (PCPNDT, Act). These suspended provisions drew a lot of flak from critiques around the country, in challenge to the essential requirement of this act in the Indian sphere. The author herein deciphers the suspended provisions, as well as analysing the requirements and problems of any such suspension.
What are the suspended provisions?
In many quarters of the media, apprehension of the suspension of the provisions of the PCPNDT act, were believed to be in relation to the complete stop to the ban against determination of the sex of the child. In essence though, the provisions which were suspended are Rule 8, 9(8), and 18A (6) of the rules related with the act.
Rule 8 relates to the application process for the renewal of the registration of Genetic Counselling Centres, Genetic Laboratories and the Genetic Clinics.
Rule 9(8) is in relation to the mandated submission of documents, or hard copy of the complete report of all the pre-conception or pregnancy related techniques/procedures/tests which are conducted by the various clinics in the country, to the envisaged Authority as noted in the Act by the 5th of Every month.
Rule 18A(6), mandates the direction of the Appropriate Authority to provide a quarterly progress report to the Government of India which is done through the State Government and also for the maintenance of Form H of the rules as a ready source of information for all the registrations made.
These are the only provisions which have been suspended in their operation as in relation to the act.
What are the information which are recorded and why is it recorded?
There are certain forms of information that are required to be recorded under the PC-PNDT Rules, which are vital in the government’s policy measures to stop the practice of Sex-Selection in the country.
In all the Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic, Ultrasound Clinic and Imaging centre there is the requirement of a register being maintained in the facility, which is maintained in order, with the name serialised names, addresses and other pertinent details of the men or women who have availed the services in these facilities.
In essence, for effective utilisation of the act and for the fulfillment of its objectives, the purpose of registration and maintenance of records are essential.
These measures allow the government to track illegal operations in these clinics, and to allow them to garner data, and prevent deaths of young girl children, on the basis of sex selection practices.
Why are the provisions suspended?
In light of the current situation and the propensity of the requirements of the healthcare facilities, and government machinery, there has been unprecedented steps which have been taken in the country, including the imposition of a nation-wide lockdown period, now extended till the 3rd Of May 2020. With regards to these measures, the Government as a policy measure has decided to suspend the following provisions as in their belief the application of the same will be hard under the current guidelines issued by them, for the preservation of life in the country, and the relative measures of restriction of movement and focused healthcare.
It is important to note that the legal provisions in conjunction to the banning of the practice are still in place, but rather the application of certain rules have been restricted, and as explained above, they are majorly focused towards the reporting of the cases.
Does the suspension of the provisions not require the maintenance of records?
The suspended provisions in turn are not directly related to the registers in the facilities to not be maintained. The procedures which have been suspended are in relation to the reporting of the cases and use of techniques, rather than the proper maintenance of the records. In turn, the records need to still be maintained as under Section 29 of the Act till a necessary time period has passed.
For proper use, the period post, the suspension may require these facilities to submit the records as when requested by the necessary authorities to do the same.
Problems in Suspension
As in the current situation, there are many challenges that have now come up due to the suspensions of certain rules in the provisions of the rules related to the act. The suspension, was essentially done to prevent administrative difficulty, to strained government machinery, yet from the onset of the notification of the suspension certain sections of the community have showcased their apprehension about the measures taken under the government. The actual mechanisms to prevent sex selection is still in place through the act, the only suspension has been to the reporting mechanisms. Yet, the people were under the impression over the fact that the suspension was of the nature of preventing the entire ambit of the act. This situation created confusion in the community, and there were media reports in relation to the same as well.
The notification, seemingly was unclear to a section of the populace, and therein later on in their clarification, the ministry and the media outlets, correctly assured that the suspension was not in toto but partially done to prevent burden on the system in the trying times, ensued by the COVID – 19 virus.
Even with the partial ban of the procedure of submission of registrations, certain ground realities may come into play. There are malpractices, which can be formed in this period of time, and the population of the country may even opt to not utilize the services, sometimes essential to ensure the health of mother and child in the pregnancy period. The reporting of the information via online measures daily is still in continuation, the only stop, is therefore to the submissions of hard copy data on the 5th of every month. This again brings in another dimension to the ground reality. The clinics or establishments who are providing these services may choose not to properly maintain online records during this period of time, the same may lead to loopholes, including allowing criminal acts to flourish by allowing men and women to utilize the facilities of these clinics and establishments to determine the sex of the child, which in essence can lead to sex selection. Further analysis of the respective sections is done below.
The clarifications issued by the Ministry of Health provide certain solace to the individuals concerned post the apparent suspension of the provisions of the act. In truth even with the relaxation of the provisions, there are some glaring issues which come to the forefront of the debate.
The relaxation of the submissions of the hard copy of data, and the only requirements for online update of the services rendered, may in turn allow for the alteration of official records, and the illegal application by the clinics and establishments which may lead to sex selection practices being supported, though the same has still in effect been banned in India.
The relaxation to the requirements of submissions may also result in the improper scrutiny of the data when the same is reviewed by the appropriate authority post the period of relaxation.
Understandably the measures have been taken to prevent additional strain to healthcare workers, and the administration yet, the same in the future may lead to additional opportunities of exploitation of loop holes. The administration, therefore, would be required to process additional data at a shorter period of time, and ensuring the veracity and correctness of the data scrutinized may be required at a shorter period of time. The administration may also be required to take swift action, to prevent the investigated instances of illegality.
Though the measures taken are from a positivistic viewpoint and are in turn essential the future is in turn seeming fraught with further strain to the administration in clearing the backlog as well as in addressing potential challenges which can be identified at a later date. The time period from commission of the act, to its identification, and to necessary action may be expanded, yet, as a necessity from the imminent situation of COVID-19 pandemic in the country, it is necessary. The government then needs to ensure proper steps are taken to check the administration's response once the relaxation period is completed.
The country faced with a gargantuan task and problem in response to the COVID-19 pandemic has been forced to take measures in various different fields to prevent the loss of life and to preserve mechanisms to address day to day as well as urgent requirements of the community. In response to the situation, many aspects of the legal frameworks in the country have been relaxed, similarly, the PCPNDT Act, has seen the relaxation of certain provisions of the rules, related to the reporting of the activities conducted in the laboratories, clinics, and other establishments. A necessary step to prevent additional administrative strain and collapse, it is still filled with risks in a certain sense. Even though the ban against the practice is still in play, the actual issue can be deeper and more long-lasting. The government, therefore, is required to properly analyze the current situation as well as ensure that the return to normalcy is conducted at the fastest rate possible. The administrations will also be tasked to analyze and correct data collected and submitted to the appropriate authorities as well as take timely action, on delayed receipt of the data to further ensure that no problems from this period ensue.
The public perception and response need to be monitored as well. The current situation is hard to record, yet the actions of the government in the future is key and is to be seen as the situation progresses around the country.
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