Forced And Illicit Abortions In Unhygienic Clinics Violate The Right To Bodily Autonomy U/Article 21 Of Constitution: Punjab and Haryana HC

The Punjab and Haryana High Court observed the severe consequences of forced and illicit abortions conducted in unsanitary clinics, emphasizing that such practices infringe upon the right to bodily autonomy as enshrined in Article 21 of the Constitution.

The Court dismissed a Petition seeking to quash an FIR filed under the provisions of the Preconception and Pre-Natal Diagnostic Techniques Act, 1994 (PNDT Act) and the Indian Penal Code, 1860 (IPC).

The Court emphasized that while the police can register an FIR and investigate a cognizable offence, Section 28 of the PNDT Act restricts the Court from taking cognizance without a written complaint from the Appropriate Authority.

The Bench of Justice Harpreet Singh Brar observed, “Forced, illicit abortions in unhygienic clinics directly attacks their right to bodily autonomy inter alia violating right enshrined under Article 21 of the Constitution of India”.

Advocate Abhishek Sethi appeared for the Petitioner and Deputy Advocate General Geeta Sharma appeared for the State.

The Civil Surgeon-cum-Chairperson, District Appropriate Authority (Authority), received information about illegal sex determination in District Kurukshetra. A team, including a decoy, was formed, and a raid was conducted. A tout named Babita was apprehended while attempting to reveal the sex of the decoy's fetus. The raid involved coordination between Karnal and Kurukshetra teams, leading to the recovery of incriminating evidence.

The Court framed the following issue: “Whether police has the power to register FIR and investigate an offence under the PNDT Act?”

The Court noted that per the provisions the offences under the PNDT Act are cognizable, non-bailable, and non-compoundable. Rule 18-A of the Pre-conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 (Rules) clarifies that police investigation is not entirely prohibited, and the Appropriate Authority can seek police assistance when deemed necessary.

Furthermore, the Court observed that while police can register an FIR and conduct an investigation upon receiving information about a cognizable offence, Section 28 of the PNDT Act restricts the Court from taking cognizance without a complaint from the Appropriate Authority.

“The preference for a male child is evident from the skewed sex ratio, which is rooted in cultural and social biases that not only propagate misogyny but also endangers the health of the expectant mothers”, the Court noted. Selective termination of pregnancies raises ethical concerns and exacerbates gender inequality, violating bodily autonomy rights, including those under Article 21 of the Indian Constitution.

The Bench observed, “therefore, it is imperative that the Courts do not fall prey to hyper-technical approaches while interpreting the PNDT Act and pay due regard to the legislative intent behind it”. The Court emphasized the social utility and held that a restrictive interpretation would negate the very purpose of its enactment.

The Bench reiterated that the FIR could not be quashed on the ground that the police do not have the authority to register and investigate PNDT Act offences. “The only restriction imposed upon the Court is that it cannot take cognizance except on the complaint filed in writing by the Appropriate Authority”, the Court added.

Accordingly, the Court dismissed the Petition.

Cause Title: Dr Rachna Raina v State of Haryana (2023:PHHC:163142)

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