It will therefore be seen that the enactment
does not bring about total prohibition of any such
tests. It intends to thus prohibit user and
indiscriminate user of such tests to determine the sex
at preconception stage or post conception stage. The
right to life or personal liberty cannot be expanded to
mean that the right of personal liberty includes the
personal liberty to determine the sex of a child which
may come into existence. The conception is a physical
phenomena. It need not take place on copulation of (8)
every capable male and female. Even if both are
competent and healthy to give birth to a child,
conception need not necessarily follow. That being a
factual medical position, claiming right to choose the
sex of a child which is come into existence as a right
to do or not to do something which cannot be called a
right. The right to personal liberty cannot expand by
any stretch of imagination,to liberty to prohibit
coming into existence of a female foetus or male foetus
which shall be for the Nature to decide. To claim a
right to determine the existence of such foetus or
possibility of such foetus come into existence, is a
claim of right which may never exist. Right to bring
into existence a life in future with a choice to
determine the sex of that life cannot in itself to be a
right.
Vinod Soni and another Vs. Union of India Respondents.
Dated : 13/6/2005
Coram: Palshikar and Daga JJ
Ciation : 2005 CRLJ 3408, 2005 (3) Mh. L.J. 1131
1. By this petition, the petitioners who are married
couple, seek to challenge the constitutional validity
of Preconception and Prenatal Diagnostic Techniques
(Prohibition of Sex Selection) Act of 1994 (hereinafter (2)
referred to Sex Selection Act of 1994). The petition
contains basically two challenges to the enactment.
First, it violates Article 14 of the Constitution and
second, that it violates Article 21 of the Constitution
of India. At the time of argument, the learned counsel
appearing for the petitioners submitted that he does
not press his petition in so far as the challenge via
Article 14 of the Constitution of India is concerned.
2. We are, therefore, required to consider the
challenge that the provisions of Sex Selection Act of
1994 are violative of Article 21 of the Constitution of
India. Article 21 reads thus:
3. This provision of Article 21, according to the
learned counsel has been gradually expanded to cover
several facets of life pertaining to life itself and
personal liberties which an individual has, as a matter (3)
of his fundamental right. Reliance was placed on
several judgments of the Supreme Court of India to
elaborate the submission regarding expansion of right
to live and personal liberty embodied under Article 21.
in our opinion, firstly we deal with protection of life
and protection of personal liberty. In so far as
protection of life is concerned, it must of necessity
include the question of terminating a life. This
enactment basically prohibits termination of life which
has come into existence. It also prohibits sex
selection at pre conception stage. The challenge put
in nutshell is that the personal liberty of a citizen
of India includes the liberty of choosing the sex of
the offspring. Therefore he, or she is entitled to
undertake any such medicinal procedure which provides
for determination or selection of sex, which may come
into existence after conception. The submission is
that the right to personal liberty extends to such
selection being made in order to determine the nature
of family which an individual can have in exercise of
liberty quaranteed by Article 21. It inturn includes
nature of sex of that family which he or she may
eventually decided to have and/or develope. (4)
4. Reliance was placed, as already stated, on several
judgments of the Supreme Court of India on the
enlargement of the right embodied under article 21.
The right basically deals with protection of life and
protection of personal liberty. Personal Liberties
have been or personal life has been expanded during the
passage of 55 years of the Constitution. It now
includes right to pollution free water and air as held
in It includes right to a
reasonable residence for which reliance is placed on a
judgment in
This right
to a reasonable residence always postulates right to a
reasonable residence on reasonable restrictions and for
reasonable price. This right cannot be and the Supreme
Court’s judgment in does not create
a right to a reasonable residence in any citizen, free
of any cost.
5. Then reliance is placed on a Supreme Court Judgment
in and two earlier decisions
whereby the Supreme Court has explained Article 21 and
the rights bestowed thereby include right to Food,
clothing, decent environment, and even protection of
cultural heritage. These rights even if further (5)
expanded to the extremes of the possible elasticity of
the provisions of Article 21 cannot include right to
selection of sex whether preconception or post
conception.
6. The Article 21 is now said to govern and hold that
it is a right of every child to full development. The
enactment namely Sex Selection Act of 1994 is factually
enacted to further this right under article 21, which
gives to every child right to full development. A chid
conceived is therefore entitled to under Article 21, as
held by the Supreme Court, to full development whatever
be the sex of that child. The determination whether at
pre conception stage or otherwise is the denial of a
child, the right to expantion, or if it can be so
expanded right to come into existence. Apart from that
the present legislation is confined only to prohibit
selection of sex of the child before or after
conception. The tests which are available as of today
and which can incidentally result in determination of
the sex of the child are prohibited. The statement of
objects and reasons makes this clear. The statement
reads as under. (6)
"The pre-natal diagnostic techniques like
amniocentesis and sonography are useful for
the detection of genetic or chromosomal
disorders or congenital malformations or sex
linked disorders."
Then para 4 reads thus:
"Accordingly, it is proposed to amend the
aforesaid Act with a view to banning the use
of both sex selection techniques prior to
conception as well as the misuse of pre-natal
diagnostic techniques for sex selective
abortions and to regulate such techniques
with a view to ensuring their scientific use
for which they are intended."
7. It will thus be observed that the enactment
proposes to control and ban the use of this selection
technique both prior to conception as well as its
misuse after conception and it does not totally ban
these procedures or tests. If we notice provisions of
section 4 of the Act it gives permission in when any of
these tests can be administered. Sub section 2 says (7)
that no prenatal diagnostic techniques can be conducted
except for the purposes of detection of any of the (1)
chromosomal abnormalities, (2) genetic metabolic
diseases, (3) heamoglobinopathies, (4) sex-linked
genetic diseases, (5) congenital anomalies and (6) any
other abnormalities or diseases as may be specified by
the Central Supervisory Board. Thus, the enactment
permits such tests if they are necessary to avoid
abnormal child coming into existence.
8. Apart from that such cases are permitted as
mentioned in sub clause 3 of section 4 where certain
dangers to the pregnant woman are noticed. A perusal
of those conditions which are five and which can be
added to the four, existence on which is provided by
the Act. It will therefore be seen that the enactment
does not bring about total prohibition of any such
tests. It intends to thus prohibit user and
indiscriminate user of such tests to determine the sex
at preconception stage or post conception stage. The
right to life or personal liberty cannot be expanded to
mean that the right of personal liberty includes the
personal liberty to determine the sex of a child which
may come into existence. The conception is a physical
phenomena. It need not take place on copulation of (8)
every capable male and female. Even if both are
competent and healthy to give birth to a child,
conception need not necessarily follow. That being a
factual medical position, claiming right to choose the
sex of a child which is come into existence as a right
to do or not to do something which cannot be called a
right. The right to personal liberty cannot expand by
any stretch of imagination,to liberty to prohibit
coming into existence of a female foetus or male foetus
which shall be for the Nature to decide. To claim a
right to determine the existence of such foetus or
possibility of such foetus come into existence, is a
claim of right which may never exist. Right to bring
into existence a life in future with a choice to
determine the sex of that life cannot in itself to be a
right. In our opinion, therefore, the petition does
not make even a prima facie case for violation of
Article 21 of the Constitution of India. Hence it is
dismissed. In view of the fact that the petition
itself is rejected, the application for intervention is
also rejected.
xxxx
Print Page
does not bring about total prohibition of any such
tests. It intends to thus prohibit user and
indiscriminate user of such tests to determine the sex
at preconception stage or post conception stage. The
right to life or personal liberty cannot be expanded to
mean that the right of personal liberty includes the
personal liberty to determine the sex of a child which
may come into existence. The conception is a physical
phenomena. It need not take place on copulation of (8)
every capable male and female. Even if both are
competent and healthy to give birth to a child,
conception need not necessarily follow. That being a
factual medical position, claiming right to choose the
sex of a child which is come into existence as a right
to do or not to do something which cannot be called a
right. The right to personal liberty cannot expand by
any stretch of imagination,to liberty to prohibit
coming into existence of a female foetus or male foetus
which shall be for the Nature to decide. To claim a
right to determine the existence of such foetus or
possibility of such foetus come into existence, is a
claim of right which may never exist. Right to bring
into existence a life in future with a choice to
determine the sex of that life cannot in itself to be a
right.
Vinod Soni and another Vs. Union of India Respondents.
Dated : 13/6/2005
Coram: Palshikar and Daga JJ
Ciation : 2005 CRLJ 3408, 2005 (3) Mh. L.J. 1131
1. By this petition, the petitioners who are married
couple, seek to challenge the constitutional validity
of Preconception and Prenatal Diagnostic Techniques
(Prohibition of Sex Selection) Act of 1994 (hereinafter (2)
referred to Sex Selection Act of 1994). The petition
contains basically two challenges to the enactment.
First, it violates Article 14 of the Constitution and
second, that it violates Article 21 of the Constitution
of India. At the time of argument, the learned counsel
appearing for the petitioners submitted that he does
not press his petition in so far as the challenge via
Article 14 of the Constitution of India is concerned.
2. We are, therefore, required to consider the
challenge that the provisions of Sex Selection Act of
1994 are violative of Article 21 of the Constitution of
India. Article 21 reads thus:
3. This provision of Article 21, according to the
learned counsel has been gradually expanded to cover
several facets of life pertaining to life itself and
personal liberties which an individual has, as a matter (3)
of his fundamental right. Reliance was placed on
several judgments of the Supreme Court of India to
elaborate the submission regarding expansion of right
to live and personal liberty embodied under Article 21.
in our opinion, firstly we deal with protection of life
and protection of personal liberty. In so far as
protection of life is concerned, it must of necessity
include the question of terminating a life. This
enactment basically prohibits termination of life which
has come into existence. It also prohibits sex
selection at pre conception stage. The challenge put
in nutshell is that the personal liberty of a citizen
of India includes the liberty of choosing the sex of
the offspring. Therefore he, or she is entitled to
undertake any such medicinal procedure which provides
for determination or selection of sex, which may come
into existence after conception. The submission is
that the right to personal liberty extends to such
selection being made in order to determine the nature
of family which an individual can have in exercise of
liberty quaranteed by Article 21. It inturn includes
nature of sex of that family which he or she may
eventually decided to have and/or develope. (4)
4. Reliance was placed, as already stated, on several
judgments of the Supreme Court of India on the
enlargement of the right embodied under article 21.
The right basically deals with protection of life and
protection of personal liberty. Personal Liberties
have been or personal life has been expanded during the
passage of 55 years of the Constitution. It now
includes right to pollution free water and air as held
in It includes right to a
reasonable residence for which reliance is placed on a
judgment in
This right
to a reasonable residence always postulates right to a
reasonable residence on reasonable restrictions and for
reasonable price. This right cannot be and the Supreme
Court’s judgment in does not create
a right to a reasonable residence in any citizen, free
of any cost.
5. Then reliance is placed on a Supreme Court Judgment
in and two earlier decisions
whereby the Supreme Court has explained Article 21 and
the rights bestowed thereby include right to Food,
clothing, decent environment, and even protection of
cultural heritage. These rights even if further (5)
expanded to the extremes of the possible elasticity of
the provisions of Article 21 cannot include right to
selection of sex whether preconception or post
conception.
6. The Article 21 is now said to govern and hold that
it is a right of every child to full development. The
enactment namely Sex Selection Act of 1994 is factually
enacted to further this right under article 21, which
gives to every child right to full development. A chid
conceived is therefore entitled to under Article 21, as
held by the Supreme Court, to full development whatever
be the sex of that child. The determination whether at
pre conception stage or otherwise is the denial of a
child, the right to expantion, or if it can be so
expanded right to come into existence. Apart from that
the present legislation is confined only to prohibit
selection of sex of the child before or after
conception. The tests which are available as of today
and which can incidentally result in determination of
the sex of the child are prohibited. The statement of
objects and reasons makes this clear. The statement
reads as under. (6)
"The pre-natal diagnostic techniques like
amniocentesis and sonography are useful for
the detection of genetic or chromosomal
disorders or congenital malformations or sex
linked disorders."
Then para 4 reads thus:
"Accordingly, it is proposed to amend the
aforesaid Act with a view to banning the use
of both sex selection techniques prior to
conception as well as the misuse of pre-natal
diagnostic techniques for sex selective
abortions and to regulate such techniques
with a view to ensuring their scientific use
for which they are intended."
7. It will thus be observed that the enactment
proposes to control and ban the use of this selection
technique both prior to conception as well as its
misuse after conception and it does not totally ban
these procedures or tests. If we notice provisions of
section 4 of the Act it gives permission in when any of
these tests can be administered. Sub section 2 says (7)
that no prenatal diagnostic techniques can be conducted
except for the purposes of detection of any of the (1)
chromosomal abnormalities, (2) genetic metabolic
diseases, (3) heamoglobinopathies, (4) sex-linked
genetic diseases, (5) congenital anomalies and (6) any
other abnormalities or diseases as may be specified by
the Central Supervisory Board. Thus, the enactment
permits such tests if they are necessary to avoid
abnormal child coming into existence.
8. Apart from that such cases are permitted as
mentioned in sub clause 3 of section 4 where certain
dangers to the pregnant woman are noticed. A perusal
of those conditions which are five and which can be
added to the four, existence on which is provided by
the Act. It will therefore be seen that the enactment
does not bring about total prohibition of any such
tests. It intends to thus prohibit user and
indiscriminate user of such tests to determine the sex
at preconception stage or post conception stage. The
right to life or personal liberty cannot be expanded to
mean that the right of personal liberty includes the
personal liberty to determine the sex of a child which
may come into existence. The conception is a physical
phenomena. It need not take place on copulation of (8)
every capable male and female. Even if both are
competent and healthy to give birth to a child,
conception need not necessarily follow. That being a
factual medical position, claiming right to choose the
sex of a child which is come into existence as a right
to do or not to do something which cannot be called a
right. The right to personal liberty cannot expand by
any stretch of imagination,to liberty to prohibit
coming into existence of a female foetus or male foetus
which shall be for the Nature to decide. To claim a
right to determine the existence of such foetus or
possibility of such foetus come into existence, is a
claim of right which may never exist. Right to bring
into existence a life in future with a choice to
determine the sex of that life cannot in itself to be a
right. In our opinion, therefore, the petition does
not make even a prima facie case for violation of
Article 21 of the Constitution of India. Hence it is
dismissed. In view of the fact that the petition
itself is rejected, the application for intervention is
also rejected.
xxxx
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