1. Challenge to the constitutional validity of Sections 23(1) and 23(2) of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 regarding record-keeping anomalies. (Para 1 )
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2019 Supreme(SC) 529
SUPREME COURT OF INDIA
Arun Mishra, Vineet Saran, JJ.
Federation of Obstetrics and Gynecological Societies of India (FOGSI) – Petitioner
Versus
Union of India and others – Respondents
Writ Petition (Civil) No. 129 of 2017
Decided on : 03-05-2019
Important Points
IMPORTANT POINT
PROVISIONS OF TNE Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 and the rules are constitutionally valid.
PROVISIONS OF TNE Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 and the rules are constitutionally valid.
Subject
Constitutional Law - Medical Law
Act Referred
CONSTITUTION OF INDIA: Art.14, Art.19(1)(g), Art.21
EVIDENCE ACT: S.113(a), S.114(a)
INDIAN MEDICAL COUNCIL PROFESSIONAL CONDUCT, ETIQUETTE AND ETHICS, REGULATIONS: Reg.1.3
PHARMACY PRACTICE REGULATIONS: Reg.6.2
PRE-CONCEPTION AND PRE-NATAL DIAGNOSTIC TECHNIQUES PROHIBITION OF SEX SELECTION ACT: S.4(3)(i), S.5, S.6, S.20, S.16, S.17(5), S.23(1)
PRE-CONCEPTION AND PRE-NATAL DIAGNOSTIC TECHNIQUES PROHIBITION OF SEX SELECTION RULES: R.9, R.11, R.12
PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT: S.29, S.30
EVIDENCE ACT: S.113(a), S.114(a)
INDIAN MEDICAL COUNCIL PROFESSIONAL CONDUCT, ETIQUETTE AND ETHICS, REGULATIONS: Reg.1.3
PHARMACY PRACTICE REGULATIONS: Reg.6.2
PRE-CONCEPTION AND PRE-NATAL DIAGNOSTIC TECHNIQUES PROHIBITION OF SEX SELECTION ACT: S.4(3)(i), S.5, S.6, S.20, S.16, S.17(5), S.23(1)
PRE-CONCEPTION AND PRE-NATAL DIAGNOSTIC TECHNIQUES PROHIBITION OF SEX SELECTION RULES: R.9, R.11, R.12
PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT: S.29, S.30
Headnote
(a) Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 - Sections 4(3)(i), 5 and 6 r/w rule 9 and Form F, Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996; Regulation 1.3, Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002; Regulation 6.2, Pharmacy Practice Regulation, 2015; Transplantation of Human Organs and Tissues Act, 1994; and Medical Termination of Pregnancy Act, 1971- Maintenance of records mandatory in all aforesaid provisions - Information at serial 1 and 2 of Form F requiring name and address of Genetic Laboratory and its registration number - Necessary in terms of section 18 - Patient name and her age at serial No.3 mandatory in terms of section 4(3)(i) - Husband’s/father’s name also necessary for identification - Serial 8 and 9 requiring information about last menstrual period/weeks of pregnancy, and history of genetic/medical disease in the family also mandatory in terms of section 4(3)(i) - Keeping these information vague, not a clerical mistake - It’s violation of sections 5 and 6 - Other Forms are also important and interlinked, operating in tandem with one another - Held, punishment prescribed u/s 23 for not keeping records not unjustified. (Para 59, 60)
(2003) 8 SCC 398; (2008) 10 SCC 139 - Referred
(b) Administration of justice - Validity of statute - Provision of the law cannot be struck down on ground of allegation of such exercise of power in arbitrary manner - Provisions of which cannot be termed to be illegal or arbitrary. (Para 64, 69, 70, 77, 78, 81)
(2016) 10 SCC 265; (2001) 5 SCC 577; (2013) 4 SCC 1; (2013) 1 SCC 745; (2016) 7 SCC 221; (2015) 5 SCC 1; (2018) 11 SCC 1; (1994) 3 SCC 394 - Relied upon
(2009) 1 GLR 64 - Cited with approval
(2019) 2 SCC 303 - Distinguished
(c) Administration of justice - Validity of statute - Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 intending to prevent mischief of female foeticide and the declining sex ratio in India - No violation of Fundamental rights. (Para 71)
AIR 1960 SC 554 - Relied upon
(d) Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 - Validity - Giving preference to male child - Violative of Article 39A and ignoring mandate of Article 51A(e) - When section 6 prohibiting sex selection is held valid, validity of the other interwoven provisions has to be upheld. (Para 72)
W.P. (C) No. 795 of 2010 (Del) - Cited with approval
(2013) 2 SCC 801; (2018) 6 SCC 454; (1996) 2 SCC 648 - Distinguished
(e) Burden of proof - Reversed burden of proof - Section 4(3), Proviso - Presumption of offence in absence of properly maintained records - Putting reversed burden of prrof on accused - Pervasive nature of crime - No illegality - Sections 29 and 30, Protection of Children from Sexual Offences (POCSO) Act; Sections 113-A, 113-B and 114-A, Indian Evidence Act, 1872 referred. (Para 84)
(f) Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 - Sections 5 and 6 and Proviso to section 4(3) - Deficiency in maintaining records - Not a clerical or technical lapse - Cannot be diluted - Similarly gradation for first and second offence held reasonable. (Para 86, 93)
(g) Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 - Section 23(2) - Suspension of licence on framing the charges - On basis of clerical mistake, inadvertent clerical lapses - Non maintenance of record not being a clerical or technical lapse, and provision of remedy in Appropriate Authority, Advisory Committee - Provisions not unjustified - Acts as a deterrent. (Para 87, 92)
(h) Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 - Section 20 - Provision of show cause in section 20(1) and affording reasonable opportunity in section 20(2) - No infirmity. (Para 88)
(i) Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 - Sections 16 and 17(5) (6) - Advisory committee consisting of one legal expert - contention that legal advice should be taken before prosecution rejected. (Para 89)
(j) Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 - Section 30 r/w Rules 11 and 12 - Power of search and seizure - Standard Operational Procedure for search and seizure already in place - Appropriate Authorities being regularly trained at National and State level - Provisions of seizure/sealing, pending trial art of all penal legislations - Not unjustified. (Para 90)
Facts of the case:
The instant writ petition has been filed by the Federation of Obstetrics and Gynaecological Societies of India (FOGSI) (hereinafter referred to as 'the Society') highlighting the issues and problems affecting the practice of obstetricians and gynaecologists across the country under the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 and challenging the constitutional validity of Sections 23(1) and 23(2) of the Act and seeking direction in the nature of certiorari/mandamus for decriminalising anomalies in paperwork/record keeping/clerical errors in regard of the provisions of the Act for being violative of Articles 14, 19(1)(g) and 21 of the Constitution of India. The Society is the apex body of obstetricians and gynaecologists of the country and is concerned for the welfare of its members.
Finding of the Court:
No case is made out for striking down the proviso to Section 4(3), provisions of Sections 23(1), 23(2) or to read down Section 20 or 30 of the Act. Complete contents of Form 'F' are held to be mandatory.
Result: Writ petition dismissed.
Legal Category Hierarchy
- constitutional law
- crime and sentencing
- administrative law
Advocates Appeared:
For the Petitioner:Mr. Amit Karkhanis, Advocate, Mr. Kapil Joshi, Advocate, for M/s. KNC, Advocate
For the Respondents:Mr. Gaurav Sharma, Advocate, (Appearance slip not given), Mr. Gurmeet Singh Makker, Advocate (Appearance slip not given) and Ms. Rashmi Nandakumar, Advocate.
For the Petitioner:Mr. Amit Karkhanis, Advocate, Mr. Kapil Joshi, Advocate, for M/s. KNC, Advocate
For the Respondents:Mr. Gaurav Sharma, Advocate, (Appearance slip not given), Mr. Gurmeet Singh Makker, Advocate (Appearance slip not given) and Ms. Rashmi Nandakumar, Advocate.
Table of Contents
2. Petitioner claims clerical errors are equated with sex determination and license suspension violates Article 21; Respondents argue record-keeping is essential to prevent female foeticide. (Para 2 , 3 , 4 , 5 , 6 , 7 , 8 , 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 22 , 23 , 24 )
3. Form 'F' is a condition precedent for tests, not a clerical formality; non-maintenance of records facilitates sex determination and constitutes a substantial breach. (Para 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35 , 37 , 39 , 40 , 41 , 42 , 43 , 44 , 45 , 47 , 48 , 52 , 53 , 54 , 55 , 56 , 57 , 58 , 59 , 60 , 61 , 62 , 63 , 64 , 65 , 66 , 67 , 68 , 69 , 70 , 71 , 72 , 73 , 74 , 75 , 76 , 77 , 78 , 79 , 80 , 81 , 83 , 84 , 85 , 86 , 87 , 89 , 90 , 91 , 92 , 93 , 94 )
4. Mandatory record-keeping under the PCPNDT Act is a condition precedent for diagnostic procedures; its deficiency is a substantive offense, not a clerical error, justifying stringent penalties. (Para 59 , 63 , 86 , 92 , 93 )
5. Writ petition dismissed; Sections 23(1) and 23(2) and the proviso to Section 4(3) are upheld; Form 'F' contents are held mandatory. (Para 96 )
6. Are clerical errors in Form 'F' treated as minor technical lapses under the PCPNDT Act?
No. Form 'F' is a condition precedent for undertaking diagnostic tests. Incomplete or vague information is a substantive violation of the Act, not a clerical error, as it defeats the purpose of preventing sex determination and facilitates the offense. (Para 59 , 63 , 86 )
7. Is the suspension of a medical license upon framing of charges under Section 23(2) constitutional?
Yes. Given the grave nature of female foeticide and the compelling state interest in gender justice, such suspension serves as a deterrent and is supported by internal safeguards and the prima facie finding of the court. (Para 87 , 91 )
8. Does the PCPNDT Act violate the presumption of innocence by treating record-keeping deficiencies as contraventions?
No. The Act provides a rebuttable presumption under the proviso to Section 4(3). This reversed burden of proof is justified by the pervasive nature of crimes against women and children and the need for gender justice. (Para 84 , 93 )
9. Is the seizure and sealing of ultrasound machines during trial a reasonable restriction on the right to practice a profession?
Yes. Such provisions are reasonable restrictions under Article 19(1)(g) to prevent the continued commission of inhumane acts like female foeticide and are consistent with other penal legislations. (Para 90 )
JUDGMENT
Arun Mishra, J.
The instant writ petition has been filed by the Federation of Obstetrics and Gynaecological Societies of India (FOGSI) (hereinafter referred to as 'the Society') highlighting the issues and problems affecting the practice of obstetricians and gynaecologists across the country under the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (hereinafter referred to as 'the Act') and challenging the constitutional validity of Sections 23(1) and 23(2) of the Act and seeking direction in the nature of certiorari/mandamus for decriminalising anomalies in paperwork/record keeping/clerical errors in regard of the provisions of the Act for being violative of Articles 14, 19(1)(g) and 21 of the Constitution of India. The Society is the apex body of obstetricians and gynaecologists of the country and is concerned for the welfare of its members.
2. The case set up on behalf of the petitioner-Society is that the Act was enacted with the objective to prohibit pre-natal diagnostic techniques for determination of sex of the foetus leading to female foeticide. But unfortunately, its implementation is more in letter and less in spirit. The problem of sex determination and gender selection is a serious issue and is one of the biggest social problems faced by our society. Despite enactment of the Act and subsequent amendments, the Child Sex Ratio has not shown significant improvement, hence, putting sufficient concern and questions on the proper implementation of the Act. It is contended that equating clerical errors on the same footing with the actual offence of sex determination shows the inherent weakness in the language of the Act.
3. It is further contended that the Appropriate Authority appointed under the Act conducts inspections and raids in various districts and cities and even if there are mere anomalies in the paperwork, it seals the sonography machine and files a criminal case under the Act. As a result, doctors who do not conduct sex determination and gender selection are being targeted on the basis of aforesaid anomalies. The inherent infirmity in the Act as it stands currently in its present form amounting to treating unequals as equals. The Act has failed to distinguish between criminal offences and the anomalies in paperwork like incomplete 'F'-Forms, clerical mistakes such as writing NA or incomplete address, no mentioning of the date, objectionable pictures of Radha Krishna in sonography room, incomplete filling of Form 'F', indication for sonography not written, faded notice board and not legible, striking out details in the Form 'F' etc., thereby charging the members of the petitioner-Society for heinous crime of female foeticide and sex determination and that too merely for unintentional mistakes in record keeping. The Act provides same punishment for the contravention of any provision of the Act, thus equating the anomalies in paperwork and the offence of sex determination and gender selection on the same pedestal. The sealing of machines directly deprives a woman in that vicinity of a critical medical aid and thereby putting the lives of the women in danger. The unreasonable sealing of the sonography machine not only impacts the welfare of the women as such, but it also amounts to undue harassment and mental torture of the members of the petitioner-Society.
4. It is further contended that the ambiguous wording of Section 23(1) of the Act has resulted in grave miscarriage of justice and the members of the petitioner-Society have faced grave hardships and have undergone criminal prosecution for act, which cannot be equated with the acts of sex determination.
5. It is averred that even the smallest anomaly in paperwork which is in fact an inadvertent and unintentional error has made the obstetricians and gynaecologists vulnerable to the prosecution by the Authorities all over the country.
6. Section 23(2) of the Act empowers the State Medical Council to suspend the regis
