Analysis

Menace of Pre-birth gender selection in Kashmir

Srinagar: A case came up before Srinagar district mediation centre recently wherein a woman had undergone abortion thrice on the pretext that there was some genetic problem and she couldn’t carry on with her pregnancy after a certain period of time, said Advocate Soffiya Mudasir, mediator at the Srinagar District Mediation Centre. The mediator says that the husband’s contention was that his wife does this deliberately. Consequently, the matter ended-up in a matrimonial dispute. After hearing both parties, medical records were called in which proved the genetic problem. The records further said, points the mediator, that treatment for the same is available.

“The treatment incurs huge expenditure, which is beyond the means of the couple,” said the mediator adding that due to illiteracy, the husband wasn’t ready to accept this and the dispute lingers on.

Referring to another case, Advocate Mudasir says, a local court here, last February convicted five persons including a doctor for conducting abortion of a woman at an advanced stage of pregnancy, which led to her death, a decade ago. The court sentenced Dr. Ghulam Nabi Bhat to 10 years rigorous imprisonment with a fine. A case was registered against Dr. Bhat and others after the woman had died at his private clinic while undergoing an abortion in 2003. Advocate Soffiya Mudasir said a similar case is registered against Dr. Bhat in Chadura (Budgam) sessions court, as well. “After this incident, doctors feel the heat and it would act as a deterrent,” she said.

Pertinently, Jammu & Kashmir state witnesses the serious phenomenon of declining sex ratio among children in the age group of 0-6 years. Only 862 female children are born per 1000 male births according to the 2011 Census report.

Mudasir says that a few months after conception, the foetus is considered a human being and once it is aborted, it means a human being has been killed. She says, mostly private practitioners, medicos as well as paramedics, are involved in pre-birth gender selection as it earns them easy and hefty amounts. This is mostly done in unregistered private clinics in a highly sophisticated and confidential manner. Medicos as well as paramedics open such centres wherein they charge hefty amounts depending upon the stage of pregnancy. In case of late pregnancy stage, they charge more, as more risk is involved.

The mediator says that sometimes it takes place with the full consent of the mother and sometimes under pressure. “Medical practitioners have a main role to curb it,” she says.

Mushrooming of polyclinics in Kashmir and their easy accessibility are contributing factors, observes the attorney, adding that discrimination against girl-child, dowry-system prevailing in society, huge expenses incurred on marriages and the notion that a girl-child is a burden are some of the other reasons responsible for pre-birth gender selection.

She further informs that there is no enforcing authority in the state under Pre-Conception and Pre-Natal Sex Selection/Determination (PCPNDT) Act, as it is still in infancy, here. “Due to lack of awareness, people don’t know whom to complain to, where and how. No Commission or Board or government committee is in place where people can register their complaints. Moreover, people are in no mood to complain, says Advocate Mudasir.

She suggests the need to strengthen human resources to look into the issue. She states that there is a medico-legal cell in every hospital but they don’t take any action and even people aren’t aware about it.

“If doctors are found guilty, they are liable for more than 10 years of imprisonment,” says advocate G N Shaheen, former Secretary of the J&K High Court Bar Association. He admits that such cases don’t come to the High Court or subordinate courts, but argues, in view of a sharp decline in female births as shown by the latest Census report, it can be said that pre-birth gender selection is a common practice here.

About PCPNDT Act, he says that it is effective and a very conclusive Act, if enforced. He observes that law enforcing agencies are corrupt which is why this law is not enforced in letter and spirit. “Even today, pre-natal tests are done in major cities and small towns for pre-birth gender selection. Law exists but cases aren’t being identified as it is done in secrecy. As such, law enforcing agencies aren’t able to react. He adds that this activity is continuing secretly and this will continue.

Asked about any loopholes in the Act, the former Bar Secretary says that as such there are no loopholes. “t provides all punitive, curative and preventive measures.” He maintains that police has a pro-active role to play. “There must be medical vigilance or surveillance as there is no proper monitoring mechanism. Police come in action once it is reported. The medical department can create its own surveillance system by creating bureaus that will keep a constant eye on laboratories. Medical vigilance teams should be from medical departments with certain powers. Otherwise, law provides for sealing of centres where pre-birth gender selection is reported. Advocate Shaheen says that many labs were sealed and doctors disqualified by government in 2010 for determining gender-related tests.

He further observed that social and cultural invasion have made inroads into “our family affairs and society wherein men are treated supreme. Islam has worked against this discrimination. It has granted socio-legal and political rights to women and it has even protected their economic rights,” he says.

About measures to be adopted, the attorney suggests moral awareness and belief in gender equality among masses need to be propagated; general awareness among parents about gender equality; concept of dowry that is making fast inroads in our society needs to be curbed. “In fact, the dowry system has made the institution of marriage very difficult resulting in discrimination against women. Consequently, insane people think to nip the problem in bud, that is, they go for pre-birth gender selection.

The attorney though points out that it is not an alarming situation in Kashmir, but definitely it is a matter of a serious concern and deserves to be urgently addressed. He says the issue is serious in Kashmir but its impact is more felt in Jammu. “A general survey in Kashmir suggests that females are brought up better, as ratio of higher studies here is increasing among women.” He adds that due to conflict, innumerable deaths took place which affected the overall birth rate.

Describing it more a social problem than legal one, he emphasizes that only social awareness and social reforms can prove effective in dealing with such issues. “Every disease is curable provided there is social stress on the problem. A social norm works more than a legal one. Legal norms are always punitive, whereas social norms are always preventive. Religion too can play an effective role,” he said.

Stressing that the pre-birth gender selection is a sin, he says, “It is unpardonable.

Throughout India, it has been found that pre-birth gender selection mostly takes place in well-off liberal section of the society… Law is good, its objective is laudable but it lacks implementation, enforcement, proper utilization and monitoring,” says Prof. Fareed Ahmad Rafiqi, Associate Professor in University of Kashmir’s Faculty of Law. He adds that “inertia lies on part of government agencies and the result is obvious.”

Prof. Rafiqi observes that though law exists, the process of the identification of people involved in diagnostic centres isn’t properly monitored and licenses aren’t properly extended. “That problem is  due to money, clout, inertia and nexus between enforcing agencies. Hospital administration, police and judiciary would have been able to control it but there is a lack of coordination. They are groping in the dark and finding no solutions,” he said.

The result is that incidents of pre-birth gender selection are on the rise, despite law being there. The problem can’t be tackled in isolation; all agencies must work together.

The academician points to a social belief, that man is superior to woman, which is the main reason behind the pre-birth gender selection, apart from the menace of dowry and consideration of daughter as a burden mostly in low and middle income groups. He says there is need to curb dowry and to consider females as a useful entity and not as a burden on society. He calls for the need to put an end to certain campaigns creating confusions like wrong interpretations of religious beliefs and creating barriers for women’s education. He says there is a role religious leaders can play in this perspective.

Pointing towards punishment, Prof. Rafiqi observes that even if you enact death penalty for this crime, it matters least. “Whatever is the quantum of punishment, it will not make any difference. A sentence comes once a violater is convicted. Even if someone is convicted but not rejected by society, the practice will be encouraged but if the practice is boycotted it becomes a deterrent.” He adds that the irony is that “we accept the violators as honourable citizens due to their clout, whereas we ought to condemn them at the societal level.”

About the various steps that can be taken to curb the menace of the pre-birth gender selection, he suggests awareness generation among masses about dignity of women, that man is in no way superior to women and there is no reason to discriminate against women, increase level of literacy among women and the need to empower women by giving them authority like their induction in police and judiciary.

He adds that women have to be trained and educated to withstand pressure at various levls and stages. “Confidence Building Measures (CBMs) ought to be taken so that they are able to live a dignified life. Any diagnostic centre found violating PCPNDT should be severely dealt with, its license should be automatically cancelled and the quantum of fine fixed. The same could act as a deterrent for others,” he says.                  

The academician observes that the termination of pregnancy adversely affects society in the long run as the foetus terminated can be tomorrow’s Madam Curie or likewise. He further observes that there is a possibility of misusing Medical Termination which is otherwise done if life of a mother is at risk.

PCPNDT Act is a crucial part of three subjects taught at the university level - Gender Justice; Women and Criminal Law and the Act as a separate local law.

(This article is part of Media fellowship programme offered by Mumbai-based NGO, Population First. Feedback is welcome at afsana7861@yahoo.co.in)

This article appeared in The Milli Gazette print issue of 16-31 August 2013 on page no. 11

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