Case Note & Summary
The petitioners, a married couple, filed a criminal writ petition before the High Court of Judicature at Bombay challenging the constitutional validity of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (Sex Selection Act). Originally, the petition raised two grounds: violation of Article 14 (equality) and Article 21 (right to life and personal liberty) of the Constitution of India. During arguments, the learned counsel for the petitioners expressly gave up the challenge under Article 14, leaving only the Article 21 challenge to be decided. The petitioners contended that the right to personal liberty under Article 21, as expansively interpreted by the Supreme Court in various judgments, includes the right to choose the sex of one’s child. They relied on decisions that extended Article 21 to rights such as pollution-free water and air, reasonable residence, food, clothing, decent environment, and protection of cultural heritage, arguing that personal liberty should similarly encompass the determination of family composition, including the sex of offspring. The respondents, including Union of India and an intervenor, defended the Act, asserting that it is a regulatory measure aimed at curbing the rampant misuse of prenatal diagnostic techniques for sex-selective abortions and that it does not completely prohibit such tests but restricts them to legitimate medical purposes. The court, after examining the scope of Article 21, held that the right to personal liberty cannot be stretched to include the liberty to select the sex of a child before or after conception. It observed that the Act is intended to prevent the misuse of techniques like amniocentesis and sonography for sex determination, while permitting their use for detecting genetic abnormalities, metabolic diseases, haemoglobinopathies, sex-linked genetic diseases, congenital anomalies, and other specified conditions. The court emphasised that a child conceived has a right to full development under Article 21, irrespective of sex, and the Act furthers this right. The court concluded that the petition did not make out even a prima facie case of violation of Article 21 and dismissed the writ petition. The connected criminal application for intervention was also rejected.
Headnote
A) Constitutional Law - Right to Personal Liberty - Scope of Article 21 - Constitution of India, 1950, Article 21; Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, Section 4 - The petitioners argued that under Article 21, the right to personal liberty encompasses the choice of sex of offspring, citing various Supreme Court expansions; the court held that such a right is not included and the Act furthers the right to full development of a child; Held, the Act does not violate Article 21 and petition is dismissed (Paras 2-8).
Issue of Consideration
Whether the provisions of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 violate Article 21 of the Constitution of India?
Final Decision
The High Court dismissed the writ petition, holding that the right to personal liberty under Article 21 does not encompass the right to select the sex of a child before or after conception. The court found that the Act does not totally prohibit diagnostic tests but only curbs their misuse for sex selection, and it furthers the right of every child to full development under Article 21. Criminal Application No. 3647 of 2005 for intervention was also rejected.
Law Points
- Article 21 protection of life and personal liberty does not include right to select sex of child
- Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act
- 1994 constitutionally valid
- tests permitted for specific medical conditions
- right to full development of child under Article 21
