LAWS ON GENDER AND SEX DETERMINATION

The principle of gender equality has been provided in the Indian Constitution in its
Preamble, Fundamental rights, Fundamental Duties and DPSP. Constitution not only
provides equality to women, but also empowers the state to adopt measures of positive
discrimination in favor of women and YES the government has adopted the measures by
giving them constitutional privileges and special initiatives. They are:Constitutional Privileges
(i)
Equality before law for women (Article 14)
(ii)

The State not to discriminate against any citizen on grounds only of religion,

race, caste, sex, place of birth or any of them (Article 15 (i))

(iii)

The State to make any special provision in favour of women and children

(Article 15 (3))
(iv)

Equality of opportunity for all citizens in matters relating to employment or

appointment to any office under the State (Article 16)

(v)

The State to direct its policy towards securing for men and women equally the

right to an adequate means of livelihood (Article 39(a)); and equal pay for equal
work for both men and women (Article 39(d))
(vi)

To promote justice, on a basis of equal opportunity and to provide free legal

aid by suitable legislation or scheme or in any other way to ensure that

opportunities for securing justice are not denied to any citizen by reason of
economic or other disabilities (Article 39 A)
(vii)

The State to make provision for securing just and humane conditions of work

and for maternity relief (Article 42)

(viii) The State to promote with special care the educational and economic interests
of the weaker sections of the people and to protect them from social injustice and all
forms of exploitation (Article 46)
(ix)

The State to raise the level of nutrition and the standard of living of its people

(Article 47)
(x)

To promote harmony and the spirit of common brotherhood amongst all the

people of India and to renounce practices derogatory to the dignity of women

(Article 51(A) (e))
(xi)

Not less than one-third (including the number of seats reserved for women

belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of

seats to be filled by direct election in every Panchayat to be reserved for women and
such seats to be allotted by rotation to different constituencies in a Panchayat
(Article 243 D(3))
(xii)

Not less than one- third of the total number of offices of Chairpersons in the

Panchayats at each level to be reserved for women (Article 243 D (4))

(ix)

Not less than one-third (including the number of seats reserved for women

belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of
seats to be filled by direct election in every Municipality to be reserved for women
and such seats to be allotted by rotation to different constituencies in a Municipality
(Article 243 T (3))
(x)

Reservation of offices of Chairpersons in Municipalities for the Scheduled

Castes, the Scheduled Tribes and women in such manner as the legislature of a
State may by law provide (Article 243 T (4))
SPECIAL INITIATIVES FOR WOMEN
(i)

National Commission for Women

In January 1992, the Government set-up this statutory body with a specific mandate
to study and monitor all matters relating to the constitutional and legal safeguards
provided for women, review the existing legislation to suggest amendments
wherever necessary, etc.
(i)
Reservation for Women in Local Self -Government
The 73rd Constitutional Amendment Acts passed in 1992 by Parliament ensure onethird of the total seats for women in all elected offices in local bodies whether in
rural areas or urban areas.
(ii)
The National Plan of Action for the Girl Child (1991-2000)
The plan of Action is to ensure survival, protection and development of the girl child
with the ultimate objective of building up a better future for the girl child.
(iv) National Policy for the Empowerment of Women, 2001
The Department of Women & Child Development in the Ministry of Human Resource
Development has prepared a National Policy for the Empowerment of Women in
the year 2001. The goal of this policy is to bring about the advancement,
development and empowerment of women.

On the contrary, gender discrimination continues to be an enormous problem

within Indian society. Traditional patriarchal norms have relegated women to
secondary status within the household and workplace. This drastically affects
women's health, financial status, education, and political involvement. Women are
commonly married young, quickly become mothers, and are then burdened by
stringent domestic and financial responsibilities. They are frequently malnourished
since women typically are the last member of a household to eat and the last to
receive medical attention. Additionally, only 54 percent of Indian women are
literate as compared to 76 percent of men. Women receive little schooling, and
suffer from unfair and biased inheritance and divorce laws. These laws prevent
women from accumulating substantial financial assets, making it difficult for women
to establish their own security and autonomy.
There are laws in our country, which clearly favour men over women, here are some
of them:
Hindu laws of inheritance: Different religions have different inheritance laws.
According to the Hindu inheritance law, the property of a woman who dies without a
will is handled differently from that of a man. In the absence of spouse and children,
the husbands heirs inherit the womans estate.
Parsi laws of inheritance: Despite decreasing numbers in the Parsi community,
those who marry outside the community are penalised. A non-parsi woman who is
either a wife or a widow of a Parsi man cannot inherit. However, their children can.
But again, a Parsi woman marrying a non-Parsi man cannot be considered a part of
the Parsi community.
Prohibition of Child Marriage Act: The law only prohibits the marriages of
children; it does not render them illegal once they actually happen. The married
children, however, have the right to declare it void. A woman can call off a marriage
until she turns 20, whereas a man has till age 23.
Age of consent: Sexual intercourse with a girl below the age of 18 is considered
rape. But since child marriages are not illegal, a man can legally have sex with his
wife even if she is a minor, as long as she is above the age of 15. Further, marital
rape is still not criminalised in India.
Rape of a separated wife: The rape of a separated wife carries lesser punishment
than the rape of any other woman. Forced sexual intercourse with the former is

punishable with two to seven years of imprisonment. The prison sentence for the
rape of any other woman ranges from seven years to life.
Marriageable age: The minimum age for marriage for a boy is 21, but 18 for a
girl. This is a legal extension of the patriarchal mindset that believes that a wife
should always be younger than the man.
Hindu Minority and Guardianship Act: Women are still not equal guardians of
their children. A father is considered the natural guardian of a child, although the
custody of offspring under the age of 5 will ordinarily be awarded to the mother.
The Goa Law on polygamy: A law recognises the second marriage of a Gentile
Hindu man of Goa if his previous wife does not have any children before the age of
25 or if she does not have a male child by 30.
No right to marital property: Upon separation or divorce, an Indian woman is
entitled only to maintenance from her husband. She has no right to the assets, such
as house or commercial property, bought in her husbands name during the
marriage.
According to the Global Gender Gap Report released by the World Economic
Forum (WEF) in 2011, India was ranked 113 on the Gender Gap Index
(GGI) among 135 countries polled. Since then, Indias rankings on the World
Economic Forum's Gender Gap Index (GGI) has fallen to 114/142 in 2013.
Over 50% of Indian labor is employed in agriculture. A majority of rural men work
as cultivators, while a majority of women work in livestock maintenance, egg and
milk production. About 78 percent of rural women are engaged in agriculture,
compared to 63 percent of men. About 37% of women are cultivators, but they are
more active in the irrigation, weeding, winnowing, transplanting, and harvesting
stages of agriculture. About 70 percent of farm work was performed by women in
India in 2004.[16] Women's labor participation rate is about 47% in India's tea
plantations, 46% in cotton cultivation, 45% growing oil seeds and 39% in
horticulture.
There is wage inequality between men and women in India. The largest wage gap
was in manual ploughing operations in 2009, where men were paid INR 103 per day,
while women were paid INR 55, a wage gap ratio of 1.87.
LAWS ON SEX DETERMINATION
Two laws that prohibit the sex selection of a fetus in India are the Medical
Termination of Pregnancy Act, 1971 (MTP), as amended in 2002, and the Pre-

natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act,

1994 (PNDT), as amended in 2002. The former Act prohibits abortion except only
in certain qualified situations, while the latter prohibits the sex selection of a fetus
with a view towards aborting it.
The laws of India do not permit abortion. The Medical Termination of Pregnancy Act,
1971 (MTP) Act, which prohibits abortion, was enacted with a view towards
containing the size of the family. However, in some cases the desire for a small
family may have outweighed the desire for a child of a specific gender, leading to
abortions where the sex of the fetus was different from that desired by the family.
The MTP Act stipulated that an abortion may lawfully be done in qualified
circumstances. But the unscrupulous connived to misuse the law to have abortions
conducted for the purpose of sex selection.
Later, innovative technologies made sex selection easier, and without the regulations
to control the use of such technologies, these technologies began to be misused for
sex-selective abortions. These actions necessitated enactment of the Pre-natal
Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 (PNDT) in
1994. This act was amended in 2002 in an effort to close loopholes contained in the
original act.
MTP Act
Under the Indian Penal Code, causing an abortion, even if caused by the pregnant
woman herself, is a criminal offense, unless it is done to save the life of the woman.
The offense is punishable by imprisonment for a period of three years, by fine, or by
both.
The MTP Act provides for an abortion to be performed by a registered medical
practitioner in a government hospital provided, in his opinion;
Continuance of the pregnancy, (which at the time must not exceed twelve weeks
and);
Involves a risk to the life of the woman or a grave injury to her physical or mental
health; or,
There is a substantial risk that the child, when born, would suffer such physical or
mental abnormalities as to be seriously handicapped.
A pregnancy caused by rape is presumed to constitute a grave injury to the mental
health of the pregnant woman. The Act also allows an abortion to be performed
when the pregnancy occurs due to the failure of any device or method used by any

married woman or her husband for the purpose of limiting the number of children.
Where the pregnancy is more than twelve weeks but less than twenty weeks, the
opinion regarding the medical necessity for an abortion in the above circumstances
must be formed in good faith by two medical practitioners. When the pregnancy is
less than 12 weeks, the opinion of one medical practitioner is necessary for the
approval of an abortion. All abortions must be performed in a government hospital,
regardless of the length of the pregnancy.
PNDT Act (Pre-Natal Diagnostic Techniques)
The PNDT Act of 1994, later amended in 2002, was enacted with the objective as
stated in the preamble;
to provide for the prohibition of sex selection, before or after conception, and for
regulation of pre-natal diagnostic techniques for the purposes of detecting genetic
abnormalities or metabolic disorders or chromosomal abnormalities or certain
congenital malformations or sex-linked disorders and for the prevention of their
misuse for sex determination leading to female feticide and for matters connected
therewith or incidental thereto.
Thus, the PNDT Act prohibits the use of all technologies for the purpose of sex
selection, which would also include the new chromosome separation techniques.
With the blanket prohibition contained in sections 3, 4 and 5 of the PNDT Act, there
is effectively a ban on sex selection in India. It is not possible to use pre-natal
diagnostic techniques to abort fetuses whose sex and family history indicate a high
risk for certain sex-linked diseases, or to choose a fetus whose sex is less
susceptible to certain sex-linked diseases. This blanket prohibition may appear to
be a contradiction to the provisions of the MTP Act, which permits the abortion of a
fetus that is at a risk of being born with serious physical or mental disabilities.
While it is legally permissible to abort a fetus at risk of serious physical or mental
disabilities, it is not permissible to select a fetus of a sex which is less likely to suffer
from a sex-linked disease.
The PNDT Act primarily provides for the following:
Prohibition of sex selection, before and after conception.
Regulation of prenatal diagnostic techniques (e.g., amniocentesis and
ultrasonography) for the detection of genetic abnormalities, by restricting their use
to registered institutions. The Act allows the use of these techniques only at a

registered place, for a specified purpose, and by a qualified person who is registered
for the purpose.
Prevention of the misuse of such techniques for sex selection, before or after
conception.
Prohibition of the advertisement of any techniques used for sex selection as well as
those used for sex determination.
Prohibition on the sale of ultrasound machines to persons not registered under this
Act.
Punishment for violations of the Act. Violations carry a five-year jail term and a fine
of approximately US $200-$1,000. All offenses are cognizable when police may
arrest without a warrant. They are also non-bailable and non-compoundable.
Indian laws do not, under any circumstance, allow sex determination tests to be
undertaken with the intent to terminate the life of a fetus developing in the mothers
womb, unless there are other absolute indications for termination of the pregnancy
as specified in the MTP Act of 1971. Any act causing the termination of the
pregnancy of a normal fetus would amount to feticide, and in addition to rendering
the physician criminal liable, is considered professional misconduct on his part,
leading to his penal erasure.
But bans on child marriage, pre-natal sex selection tests and dowries are
poorly enforced, while laws excluding daughters and widows from inheriting land
still exist, a study by the U.N. World Population Fund (UNFPA) found.
India has skewed child sex ratios that rights campaigners describe as alarming. The
number of girls under six years old has fallen for the past 50 years and
there are now 919 girls to every 1,000 boys, against 976 in 1961, according
the 2011 census.
Experts say a strong preference for sons is the root cause behind the uneven ratios,
with some parents taking illegal gender tests to abort female foetuses.
Twelve million Indian girls have been aborted in the last three decades, a
2011 study in the British medical journal Lancet found.
Other girls die due to preventable diseases such as pneumonia and diarrhea,
because they are sidelined in favour of their male siblings when it comes to access
to health care and nutrition.

The Indian census data suggests there is a positive correlation between abnormal
sex ratio and better socio-economic status and literacy. Urban India has higher child
sex ratio than rural India according to 1991, 2001 and 2011 Census data, implying
higher prevalence of sex selective abortion in urban India. Similarly, child sex ratio
greater than 115 boys per 100 girls is found in regions where the predominant
majority is Hindu, Muslim, Sikh or Christian; furthermore "normal" child sex ratio of
104 to 106 boys per 100 girls are also found in regions where the predominant
majority is Hindu, Muslim, Sikh or Christian. These data contradict any hypotheses
that may suggest that sex selection is an archaic practice which takes place among
uneducated, poor sections or particular religion of the Indian society.
Hence, we could state that statements such as sex selection is a practice of rural
people are all misconceptions and it is a practice done in urban area too and this is
possible by the support of politicians and local police as stated by a Delhi Court.