Punjab and Haryana High Court talks tough on illicit abortions

Saurabh Malik

Chandigarh, December 20

Forced and illicit abortions in unhygienic clinics directly attacked and violated the right to bodily autonomy enshrined under Article 21 of the Constitution, the Punjab and Haryana High Court has ruled.

The assertion came as Justice Harpreet Singh Brar made it clear that the courts across Punjab, Haryana and Chandigarh were mandatorily required not to fall prey to hyper-technical approaches while interpreting the Preconception and Pre-Natal Diagnostic Techniques (PNDT) Act.

What court says

Forced and illicit abortions in unhygienic clinics directly attacked and violated the right to bodily autonomy enshrined under Article 21 of the Constitution. —Punjab and Haryana High Court

Justice Brar also added that the courts were rather required to pay due regard to the legislative intent behind the Act, which “served a social utility” and its restrictive interpretation would negate the very purpose of its enactment.

The assertion came as Justice Brar ruled that the preference for a male child was evident from the skewed sex ratio. It was rooted in cultural and social biases that not only propagated misogyny, but also endangered the health of the expectant mothers. Along with posing deep ethical questions, the selective termination of pregnancies further exacerbated gender inequality in society creating an unsafe environment, not conducive to the cause of gender justice.

Justice Brar was hearing a petition for quashing an FIR registered under the provisions of the Act. It was argued that no court would take cognizance of an offence under the Act, except on a complaint by the appropriate authority or any officer authorised by the Central or the state government.

Justice Brar asserted that the question before the court was whether the police had power to register an FIR and investigate an offence under the PNDT Act? The offences provided under the Act were cognizable, non-bailable and non-compoundable. In cognizable offences, the police had the power to carry out arrest without warrant and embark upon the investigation without the court’s permission.

Rule 18-A of the Pre-conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996, indicated that the power of the police to investigate was not completely barred. The expression ‘as far as possible’ under Rule 18-A (3) indicated that the appropriate authority could take aid and assistance of the police.