# FEDERATION OF OBSTETRICS AND GYNECOLOGICAL SOCIETIES OF INDIA (FOGSI) v. UNION OF INDIA AND OTHERS

- **Citation:** [2019] 7 S.C.R. 12
- **Court:** Supreme Court of India
- **Decided:** 2019-05-03
- **Bench:** Arun Mishra, Vineet Saran
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/federation-of-obstetrics-and-gynecological-societies-of-india-fogsi-v-union-of-33981
- **Pages:** 82

## Headnote

Pre-conception and Pre-natal Diagnostic Techniques
(Prohibition of Sex Selection) Act, 1994 - ss.23(1) and 23(2) -
Constitutional validity of - The petitioner-Society contended that s.
23(2) of the Act is ultra-vires the Constitution as it assumes the guilt
of the alleged accused even before his/her conviction by a competent
court and hence violates the fundamental right guaranteed u/Art.21
of the Constitution - Held: s.23 is not a stand alone section - It is
rather used in the enforcement of other provisions of the Act and
violations of s.23 are often accompanied by violations of provisions
of ss.4, 5, 6 and 18 of the Act - It provides for punishment for any
medical geneticist, gynecologist, registered medical practitioner or
a person who owns a Genetic Counselling Centre, a Genetic clinic
or a Genetic Laboratory, and renders his professional or technical
services to or at said place, whether on honorarium basis or
otherwise and contravenes any provisions of the Act, or the Rules
under it - Therefore, dilution of the provision of the Act would only
defeat the purpose of the Act to prevent female foeticide and relegate
the right to life of the girl child u/Art.21 of the Constitution, to a
mere formality - Thus, no case made out for striking down the
provisions of ss.23(1) and 23(2).
Pre-conception and Pre-natal Diagnostic Techniques
(Prohibition of Sex Selection) Act, 1994 - Pre-conception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Rules,
1996 - Indian Medical Council Act, 1956 - Indian Medical Council
(Professional conduct, Etiquette and Ethics) Regulations, 2002 -
Petitioner-society sought direction in the nature of certiorari/
mandamus for decriminalising anomalies in paperwork like
incomplete 'F' forms/clerical mistakes/record keeping in regard of
 [2019] 7 S.C.R. 12
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the provisions of the Act for being violative of Arts. 14, 19(1)(g)
and 21 of the Constitution - Held: Though Form 'F' is a clerical
requirement, but if any information in the form is avoided, it will
result in the blantant violation of the provisions of s.4 of the Act,
1994 and may lead to a result which is prohibited u/s. 6 of the Act,
1994 - It cannot be said to be a case of clerical error as doctor has
to fulfil pre-requisites for undertaking the procedure in case the
conditions precedent for undertaking pre-natal diagnostic test is
not specifically mentioned, it would be violative of provisions
contained in s.4 - In case the indications and the information are
not furnished as provided in the Form 'F' it would amount that
condition precedent to undertake the test/procedure is absent - There
is no other barometer except form 'F' to find out why the diagnostic
test/procedure was performed - Form 'F' lays down the indicative
list for conducting ultra-sonography during pregnancy - Further,
Form 'F' being technical in nature gives the insight into the reasons
for conducting ultra-sonography and incomplete Form 'F' raises
the presumption of doubt against medical practitioner - Insofar as
maintaining of record is concerned, they have to maintained only
when the procedure or tests are conducted on pregnant woman or
when patient may have been advised to use pre-conception
diagnostic tools to conceive a child - The scheme of the Act makes
it evident that record keeping is meant to track/monitor and regulate
the use of technology that has potential of sex selection and sex
determination - As the entries are mandatory and sine qua non for
undertaking a test/procedure, the assertion that their fundamental
rights are being violated by not providing requisite information is
not germane and is without substance.
Pre-conception and Pre-natal Diagnostic Techniques
(Prohibition of Sex Selection) Act, 1994 - Proviso to s.4(3) -
Petitioner-society contended that s.4(3) should be read down - Held:
By virtue of the proviso to s. 4(3), a person conducting
ultrasonography on a pregnant woman, is required to keep complete
record of t

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FEDERATION OF OBSTETRICS AND GYNECOLOGICAL
SOCIETIES OF INDIA (FOGSI)
v.
UNION OF INDIA AND OTHERS
(Writ Petition (Civil) No.129 of 2017)
MAY 03, 2019
[ARUN MISHRA AND VINEET SARAN, JJ.]
Pre-conception and Pre-natal Diagnostic Techniques
(Prohibition of Sex Selection) Act, 1994 - ss.23(1) and 23(2) -
Constitutional validity of - The petitioner-Society contended that s.
23(2) of the Act is ultra-vires the Constitution as it assumes the guilt
of the alleged accused even before his/her conviction by a competent
court and hence violates the fundamental right guaranteed u/Art.21
of the Constitution - Held: s.23 is not a stand alone section - It is
rather used in the enforcement of other provisions of the Act and
violations of s.23 are often accompanied by violations of provisions
of ss.4, 5, 6 and 18 of the Act - It provides for punishment for any
medical geneticist, gynecologist, registered medical practitioner or
a person who owns a Genetic Counselling Centre, a Genetic clinic
or a Genetic Laboratory, and renders his professional or technical
services to or at said place, whether on honorarium basis or
otherwise and contravenes any provisions of the Act, or the Rules
under it - Therefore, dilution of the provision of the Act would only
defeat the purpose of the Act to prevent female foeticide and relegate
the right to life of the girl child u/Art.21 of the Constitution, to a
mere formality - Thus, no case made out for striking down the
provisions of ss.23(1) and 23(2).
Pre-conception and Pre-natal Diagnostic Techniques
(Prohibition of Sex Selection) Act, 1994 - Pre-conception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Rules,
1996 - Indian Medical Council Act, 1956 - Indian Medical Council
(Professional conduct, Etiquette and Ethics) Regulations, 2002 -
Petitioner-society sought direction in the nature of certiorari/
mandamus for decriminalising anomalies in paperwork like
incomplete 'F' forms/clerical mistakes/record keeping in regard of
 [2019] 7 S.C.R. 12
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the provisions of the Act for being violative of Arts. 14, 19(1)(g)
and 21 of the Constitution - Held: Though Form 'F' is a clerical
requirement, but if any information in the form is avoided, it will
result in the blantant violation of the provisions of s.4 of the Act,
1994 and may lead to a result which is prohibited u/s. 6 of the Act,
1994 - It cannot be said to be a case of clerical error as doctor has
to fulfil pre-requisites for undertaking the procedure in case the
conditions precedent for undertaking pre-natal diagnostic test is
not specifically mentioned, it would be violative of provisions
contained in s.4 - In case the indications and the information are
not furnished as provided in the Form 'F' it would amount that
condition precedent to undertake the test/procedure is absent - There
is no other barometer except form 'F' to find out why the diagnostic
test/procedure was performed - Form 'F' lays down the indicative
list for conducting ultra-sonography during pregnancy - Further,
Form 'F' being technical in nature gives the insight into the reasons
for conducting ultra-sonography and incomplete Form 'F' raises
the presumption of doubt against medical practitioner - Insofar as
maintaining of record is concerned, they have to maintained only
when the procedure or tests are conducted on pregnant woman or
when patient may have been advised to use pre-conception
diagnostic tools to conceive a child - The scheme of the Act makes
it evident that record keeping is meant to track/monitor and regulate
the use of technology that has potential of sex selection and sex
determination - As the entries are mandatory and sine qua non for
undertaking a test/procedure, the assertion that their fundamental
rights are being violated by not providing requisite information is
not germane and is without substance.
Pre-conception and Pre-natal Diagnostic Techniques
(Prohibition of Sex Selection) Act, 1994 - Proviso to s.4(3) -
Petitioner-society contended that s.4(3) should be read down - Held:
By virtue of the proviso to s. 4(3), a person conducting
ultrasonography on a pregnant woman, is required to keep complete
record of the same in the prescribed manner and any deficiency or
inaccuracy in the same amounts to contravention of s.5 or s.6 of
the Act, unless the contrary is proved by the person conducting the
said ultrasonography - The aforementioned proviso to s.4(3) reflects
the importance of records in such cases, as they are often the only
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source to ensure that an establishment is not engaged in sexdetermination - Thus, there is no substance in the contention that
provision of s.4(3) be read down.
Pre-conception and Pre-natal Diagnostic Techniques
(Prohibition of Sex Selection) Act, 1994 - s.30 - Pre-conception
and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection)
Rules, 1996 - rr.11 and 12 - Indian Medical Council (Professional
conduct, Etiquette and Ethics) Regulations, 2002 - Petitioner-society
contended that the action of seizure of ultra-sonography machine
and sealing the premises by the competent authority cannot be said
to be appropriate - Held: s. 30 of the Act enumerates the power of
search and seizure and rr. 11 & 12 of the Rules provide for the
power of the Appropriate Authority to seal equipment, inspect
premises and conduct search and seizure - It is settled proposition
that when offence is found to be committed, there can be seizure
and sealing of the premises and equipment during trial as no license
can be given to go on committing the offence - Such provisions of
seizure/sealing, pending trial are to be found invariably in various
penal legislations - The impugned provisions contained in the Act
constitute reasonable restrictions to carry on any profession which
cannot be said to be violative of Right to Equality enshrined u/Art.
14 or right to practise any profession u/Art. 19(1)(g) - Considering
the Fundamental Duties u/Art. 51A(e) and considering that female
foeticide is most inhumane act and results in reduction in sex ratio,
such provisions cannot be said to be illegal and arbitrary in any
manner besides there are various safeguards provided in the Act to
prevent arbitrary actions - Thus, contention of the petitioner
rejected - Constitution of India - Arts.19(1)(g), 14, 51A(e).
Dismissing the writ petition, the Court
HELD : 1. When the Form 'F' is scrutinised with the
provisions of the Pre-conception and Pre-natal Diagnostic
Techniques (Prohibition of Sex Selection) Act, 1994/Preconception and Pre-natal Diagnostic Techniques (Prohibition of
Sex Selection) Rules, 1996 and there cannot be any dispute with
respect to serial Nos.1 and 2 wherein name and address of
Genetic Laboratory and its registration number is required to be
mentioned in the Form as it is necessary to have a registration
under Section 18 of the Act. It cannot be said to be a clerical
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requirement. Patient name and her age at serial No.3 is also
absolutely necessary so as to identify a person who is undergoing
the test and before the age of 35 years, it cannot be conducted as
provided under Section 4(3)(i). The same is as per the mandatory
requirement of Section 4. Husband's/father's name is also
necessary as per the statutory mandate for the purpose of
identification of patient. Full address is also mandatory so as to
ascertain the identity who is undergoing such test. In case these
information are kept vague, the violation of the Act would be
blatant and unchecked and offence can never be detected.
Information at serial No.8 of the Form 'F' requires last menstrual
period/weeks of pregnancy to be mentioned, same is also
necessary to be mentioned as it has co-relation with the
investigations and provisions of the Act and the rules framed
thereunder. The column in Form at serial No.9 requires history
of genetic/medical disease in the family to be specified which is
as per the mandate of Section 4(3)(iv) of the Act. Form 'F' at
serial No.10 requires indication for pre-natal diagnosis which is
mandatory as per the provisions contained in Section 4(2) as
except for the purposes as mentioned in Sections 4(2) and 4(3)
no such tests/procedures can be performed. Thus, what is
mandated by the Sections and in Rule 9 has been mentioned in
the Form 'F'. Procedure carried whether invasive or non-invasive
has to be obviously mentioned and in case any laboratory tests
have been recommended that is to be mentioned along with the
result. The note attached to Form 'F' also contains the
representative list of indications when ultrasound during
pregnancy can be performed. Thus, though the submission that
Form 'F' is clerical requirement urged by the petitioner-Society
appears at the first blush to be worthy examination, but on close
scrutiny it is found that in case any information in the Form is
avoided, it will result in the blatant violation of the provisions of
Section 4 and may lead to result which is prohibited under Section
6. It cannot be said to be a case of clerical error as doctor has to
fulfil pre-requisites for undertaking the procedure in case the
conditions precedent for undertaking pre-natal diagnostic test is
not specifically mentioned, it would be violative of provisions
contained in Section 4. The Form 'F' has to be prepared and
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signed by either Gynaecologist/Medical Geneticist / Radiologist
/ Paediatrician / Director of the Clinic/Centre/Laboratory. In case
the indications and the information are not furnished as provided
in the Form 'F' it would amount that condition precedent to
undertake the test/procedure is absent. There is no other
barometer except Form 'F' to find out why the diagnostic test/
procedure was performed. In case such an important information
beside others is kept vague or missing from the Form, it would
defeat the very purpose of the Act and the safeguards provided
thereunder and it would become impossible to check violation of
provisions of the Act. It is not the clerical job to fill the form, it is
condition precedent for undertaking test/procedure. With all due
regards to the submission advanced on behalf of petitionerSociety that it is a clerical job, is wholly without substance but it
is a responsible job of the person who is undertaking such a test
i.e., the Gynaecologist/ Medical Geneticist/Radiologist/
Paediatrician/Director of the Clinic/Centre/Laboratory to fill the
requisite information. In case he keeps it vague, he knows fully
well that he is violating the provisions of the Act and undertaking
the test without existence of the conditions precedent which are
mandatory to exist he cannot undertake test/procedure without
filling such information in the form. There is no other way to
ensure that test is undertaken on fulfilment of the prescribed
conditions. There is nothing else but the record which required
to be maintained and on the basis of which counter-check can be
made. There is no other barometer or criteria to find out the
violation of the provisions of the Act. Rule 9(4) also requires
that every Genetic Clinic to fill Form 'F' wherein information
with regard to details of the patient, referral notes with indication
and case papers of the patient are required to be filled and
preserved. Form 'F' lays down the indicative list for conducting
ultrasonography during pregnancy. Form 'F' being technical in
nature gives the insight into the reasons for conducting
ultrasonography and incomplete Form 'F' raises the presumption
of doubt against the medical practitioner. In the absence of Form
'F', Appropriate Authorities will have no tool to supervise the
usage of ultrasound machine and shall not be able to regulate the
use of the technique which is the object of the Act. [Para 59]
[63-A-H; 64-A-H]
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2. It is rightly contended on behalf of respondents that there
are different forms for record keeping prescribed under the Act
and the Rules they are important and interlinked, operate in
tandem with one another. These records have to be maintained
only when the procedure or tests are conducted on pregnant
woman or when patient may have been advised to use preconception diagnostic tools to conceive a child. It is required for
Genetic Counselling Centre advising the procedure/test with a
potential of detecting or determining the sex of the foetus and
referring a person to a Genetic Clinic/Imaging Centre/Ultrasound
Clinic to record the details of Genetic Clinic to which patient is
referred at point 15 of the Form 'D' along with the details of the
diagnosis and relevant medical details of the person. Accordingly,
Genetic Clinic/Imaging Centre/Ultrasound Clinic conducting the
aforesaid referred procedure has to record the name and address
of Genetic Counselling Centre with the referral slip along with
the relevant medical record of the person on whom procedure/
test/technique is conducted. The aforesaid record keeping
procedure shall be followed by Genetic Laboratories also. The
scheme of the Act makes it evident that record keeping is meant
to track/monitor and regulate the use of technology that has
potential of sex selection and sex determination. Section 23 is
not stand-alone Section. It is rather used in the enforcement of
other provisions of the Act and violations of Section 23 are often
accompanied by violations of provisions of Sections 4, 5, 6 and
18 of the Act. It is submitted that non-maintenance of record in
the context of sex determination is not merely a technical or
procedural lapse. It is most significant piece of evidence for
identifying offence and the accused. The inspection of records is
crucial to identify wrong-doers as the crime of sex determination
being a collusive crime given the nexus between the patients
and the doctors. Accordingly, punishment is provided in Section
23 for not maintaining the records. [Para 60] [65-A-F]
3. In R. Sai Bharathi v. J. Jayalalitha it has been observed
that crime is against social order, immoral and harmful act. It has
also been observed by this Court that legislature can have a law
to constitute an act or omission done by a person against the
other as a crime. Considering the evils sought to be remedied it
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cannot be said that the imposition in the Act in question is
disproportionate. The restrictions and the provisions of
punishment have close nexus with the object sought to be
achieved. It is not possible to term action as merely clerical one
as that is pre-requisite for the test/procedure and that is what is
intended by the Act, if it is given a go-bye under the guise of
clerical error, the Act would be rendered otiose. Restriction
cannot be said to be excessive and beyond what is required in
the public interest, they cater to the felt need of the society and
the complex issues facing people which the legislature intends
to solve. [Para 77] [84-D-F]
4. It is apparent from the aforesaid discussion in Shreya
Singhal v. Union of India, in a case where no reasonable standards
are laid down to define guilt in a section which creates an offence,
it would be arbitrary and unconstitutional. It is absolutely clear
that the provisions in the Act in question cannot be termed as
arbitrary or illegal or unreasonable. The provisions are not vague.
A responsible doctor is supposed to know before undertaking
such pre-natal diagnostic test etc. what is he undertaking and
what his responsibilities are. If he cannot understand the form
he is required to fill and the impact of medical findings and its
consequences which is virtually the pre-requisite for undertaking
a test, he is not fit to be a member of a noble medical profession.
Such culpable negligence is not warranted from a doctor. It is
crystal clear from the provisions of the Act which can be gathered
by a person of ordinary intelligence and they can have fair notice
of what is prohibited and what omission they should not make.
The principles deliberated upon in Shreya Singhal case rather
supports the constitutionality of the Act and the Rules framed
thereunder. Considering the compelling general public interest
and gender justice and declining sex ratio, there is no hesitation
in upholding the validity of the provisions of Section 23(1) of the
Act. [Paras 78 and 79] [86-C-F; 88-F]
5. The Act is a social welfare legislation, which was
conceived in light of the skewed sex-ratio of India and to avoid
the consequences of the same. A skewed sex-ratio is likely to
lead to greater incidences of violence against women and increase
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in practices of trafficking, 'bride-buying' etc. The rigorous
implementation of the Act is an edifice on which rests the task of
saving the girl child. [Para 85] [90-E-F]
6. In the opinion of this Court, no case is made out to hold
that deficiency in maintaining the record mandated by Sections
5, 6 and the proviso to Section 4(3) cannot be diluted as the
aforesaid provisions have been incorporated in various columns
of the Form 'F' and as already held that it would not be a case
clerical mistake but absence of sine qua non for undertaking a
diagnostic test/procedure. It cannot be said to be a case of clerical
or technical lapse. Section 23(1) need not have provided for
gradation of offence once offence is of non-maintenance of the
record, maintenance of which itself intend to prevent female
foeticide. It need not have graded offence any further difference
is so blur it would not be possible to prevent crime. There need
not have been any gradation of offence on the basis of actual
determination of sex and non-maintenance of record as
undertaking the test without the pre-requisites is totally
prohibited under the Act. The non-maintenance of record is very
foundation of offence. For first and second offences, gradation
has been made which is quite reasonable. [Para 86] [90-G-H;
91-A-B]
7. It was also contended that action of seizure of
ultrasonography machine and sealing the premises cannot be said
to be appropriate. The submission is too tenuous and liable to
be rejected. Section 30 of the Act enumerates the power of search
and seizure and Rules 11 and 12 of the Rules provide for the
power of the Appropriate Authority to seal equipment, inspect
premises and conduct search and seizure. It was pointed out by
the respondents that a "Standard Operational Procedure",
detailing the procedure for search and seizure has been developed
by the Ministry of Health and Family Welfare. Further, regular
training of Appropriate Authorities is being carried out at both
the National and State level. All the States have also been directed
to develop online MIS for monitoring the implementation of the
Act. It is settled proposition that when offence is found to be
committed, there can be seizure and sealing of the premises and
equipment during trial as no license can be given to go on
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committing the offence. Such provisions of seizure/sealing,
pending trial are to be found invariably in various penal
legislations. The impugned provisions contained in the Act
constitute reasonable restrictions to carry on any profession which
cannot be said to be violative of Right to Equality enshrined under
Article 14 or right to practise any profession under Article
19(1)(g). Considering the Fundamental Duties under Article
51A(e) and considering that female foeticide is most inhumane
act and results in reduction in sex ratio, such provisions cannot
be said to be illegal and arbitrary in any manner besides there
are various safeguards provided in the Act to prevent arbitrary
actions. [Para 90] [92-A-E]
8. Non maintenance of record is spring board for commission
of offence of foeticide, not just a clerical error. In order to
effectively implement the various provisions of the Act, the
detailed forms in which records have to be maintained have been
provided for by the Rules. These Rules are necessary for the
implementation of the Act and improper maintenance of such
record amounts to violation of provisions of Sections 5 and 6 of
the Act, by virtue of proviso to Section 4(3) of the Act. In addition,
any breach of the provisions of the Act or its Rules would attract
cancellation or suspension of registration of Genetic Counselling
Centre, Genetic Laboratory or Genetic Clinic, by the Appropriate
Authority as provided under Section 20 of the Act. [Para 92]
[92-H; 93-A-B]
9. There is no substance in the submission that provision
of Section 4(3) be read down. By virtue of the proviso to Section
4(3), a person conducting ultrasonography on a pregnant woman,
is required to keep complete record of the same in the prescribed
manner and any deficiency or inaccuracy in the same amounts to
contravention of Section 5 or Section 6 of the Act, unless the
contrary is proved by the person conducting the said
ultrasonography. The aforementioned proviso to Section 4(3)
reflects the importance of records in such cases, as they are often
the only source to ensure that an establishment is not engaged
in sex-determination. [Para 93] [93-C-D]
10. In light of the nature of offences which necessitated the
enactment of the Act and the grave consequences that would
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ensue otherwise, suspension of registration under Section 23(2)
of the Act serves as a deterrent. Section 23 of the Act, which
provides for penalties of offences, acts in aid of the other Sections
of the Act is quite reasonable. It provides for punishment for any
medical geneticist, gynecologist, registered medical practitioner
or a person who owns a Genetic Counselling Centre, a Genetic
Clinic or a Genetic Laboratory, and renders his professional or
technical services to or at said place, whether on honorarium
basis or otherwise and contravenes any provisions of the Act, or
the Rules under it. [Paras 91 and 94] [92-F; 93-E]
11. Therefore, dilution of the provisions of the Act or the
Rules would only defeat the purpose of the Act to prevent female
foeticide, and relegate the right to life of the girl child under Article
21 of the Constitution, to a mere formality. [Para 95] [93-F]
Shreya Singhal v. Union of India, (2015) 5 SCC 1 :
[2015] 5 SCR 963 ; R. Sai Bharathi v. J. Jayalalitha,
(2004) 2 SCC 9 : [2003] 6 Suppl. SCR 85 ; Centre for
Enquiry into Health and Allied Themes (CEHAT) v.
Union of India, (2001) 5 SCC 577 : [2001] 3 SCR
534 ; Voluntary Health Association of Punjab v. Union
of India, (2013) 4 SCC 1 : [2013] 5 SCR 111 ; Namit
Sharma v. Union of India (2013) 1 SCC 745 : [2013]
13 SCR 1 ; Hamdard Dawakhana v. The Union of India
AIR 1960 SC 554 : [1960] SCR 671 ; Subramanian
Swamy v. Union of India, (2016) 7 SCC 221 : [2016] 3
SCR 865 - relied on.
Suo Motu v. State of Gujarat, (2009) 1 Gujarat Law
Reporter 64 ; Raj Bokaria v. Medical Council of India
(W.P. (C) No.795 of 2010 in the High Court of Delhi)
- approved.
Arun Bhandari v. State of U.P. (2013) 2 SCC 801 :
[2013] 3 SCR 961 ; Enquiry into Health & Allied
Themes (CEHAT) v. Union of India, (2003) 8 SCC
398 : [2003] 3 Suppl. SCR 593 ; Uttar Pradesh Power
Corporation Ltd. v. Ayodhya Prasad Mishra (2008) 10
SCC 139 : [2008] 13 SCR 373 ; Voluntary Health
Association of Punjab v. Union of India (2016) 10 SCC
265 : [2016] 8 SCR 192 ; Dr. Subhash Kashinath
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Mahajan v. State of Maharashtra (2018) 6 SCC 454 :
[2018] 4 SCR 877 ; Gian Kaur v. State of Punjab (1996)
2 SCC 648 : [1996] 3 SCR 697 ; Nikesh Tarachand
Shah v. Union of India, (2018) 11 SCC 1 : [2017] 12
SCR 358 ; P. Rathinam v. Union of India (1994) 3 SCC
394 ; State of Uttar Pradesh v. Wasif Haider, (2019) 2
SCC 303 - referred to.
Case Law Reference
[2013] 3 SCR 961
referred to
Para 8
[2003] 3 Suppl. SCR 593
referred to
Para 15
[2008] 13 SCR 373
referred to
Para 38
[2016] 8 SCR 192
referred to
Para 65
[2001] 3 SCR 534
relied on
Para 66
[2013] 5 SCR 111
relied on
Para 67
[2013] 13 SCR 1
relied on
Para 69
[1960] SCR 671
relied on
Para 71
[2018] 4 SCR 877
referred to
Para 75
[1996] 3 SCR 697
referred to
Para 76
[2016] 3 SCR 865
relied on
Para 77
[2003] 6 Suppl. SCR 85
relied on
Para 77
[2015] 5 SCR 963
relied on
Para 78
[2017] 12 SCR 358
referred to
Para 79
(1994) 3 SCC 394
referred to
Para 80
(2019) 2 SCC 303
referred to
Para 82
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
129 of 2017.
(Under Article 32 of the Constitution of India)
Soli J. Sorabjee, Shyam Divan, Sr. Advs., Amit Karkhanis, Kapil
Joshi, Ms. Saloni Sulakhe, Vinayak Bhandari, Ms. Palavi Sharma (for
M/S. Knc), Advs. for the Petitioner.
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Ms. Pinky Anand, ASG, Biswajit Bhattacharya, Sr. Adv., Ms. Vimla
Sinha, Ms. Snidha Mehra, Ms. Saudamini Sharma, Gurmeet Singh
Makker, Ms. Rashmi Nandakumar, Gaurav Sharma, Dhawal Mohan,
Abhishek, Prateek Bhatia, Prasana Mohan, Advs. for the Respondents.
The Judgment of the Court was delivered by
ARUN MISHRA, J.
1. 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
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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 registration of any doctor indefinitely, who is reported by
the Appropriate Authority for necessary action, during the pendency of
trial. The petitioner-Society submitted that Section 23(2) of the Act is
ultra vires the Constitution as it assumes the guilt of the alleged accused
even before his/her conviction by a competent court and hence violates
the fundamental right guaranteed under Article 21 of the Constitution.
7. It is contended that presumption of innocence is a cardinal
principle of rule of law for which petitioner-Society has placed reliance
on Article 14(2) of the International Covenant on Civil and Political Rights,
1966, which states that everyone charged with a criminal offence shall
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have the right to be presumed innocent until proved guilty according to
law. Article 14(2) of the International Covenant on Civil and Political
Rights, 1966 reads thus:
"Article 14
1. ***
2. Everyone charged with a criminal offence shall have the right
to be presumed innocent until proved guilty according to law."
8. It is contended that the Act fails to distinguish between the
cases of presence and absence of mens rea during the commission of
minor clerical mistakes. Mens rea is not be presumed at the time of
taking cognizance and must be established as held by this Court in Arun
Bhandari v. State of U.P., (2013) 2 SCC 801.
9. The petitioner-Society has further placed reliance on the
decisions rendered by this Court in cases of penal statues to give proper
effect to the scheme of the Act concerned and to balance various interests
involved by striking down/reading down/ diluting the concerned penal
provisions.
10. It is further contended that suspension of the medical licence
at the stage of framing of charges is highly improper and harsh, which
results in loss of livelihood of not only the members of the Society, but
also his family as well as the dependents, who are deprived of financial
security and well-being. The vague and ambiguous wordings of Section
23(1) renders Section 25 totally redundant.
11. It is further submitted that Form-F as it stands today does not
serve the purpose for which it was made and there is no substantive
evidence which proves that errors in Form-F have any direct nexus with
the offence of sex selection and determination.
12. Respondent Nos.1 to 4 has refuted the claims of the petitionerSociety altogether. It is contended that the Act is a social welfare
legislation with a social objective to prevent elimination of girls before
birth and it is not a general law providing any general right to practice
medicine. The specific choice of legislature cannot be called arbitrary
and is in no way ultra vires or violative of the Constitution. The Act is
a Central legislation; however, its implementation lies primarily with the
States, who are required to enforce the law through the statutory bodies
in the State, constituted under the Act. The Act empowers the Central
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Government to regulate the use of pre-natal diagnostic techniques. The
proliferation of the technology is resulting in a catastrophe in the form of
female foeticide leading to severe imbalance in child sex ratio and sex
ratio at birth. The Centre is duty bound to intervene in such a case to
uphold the welfare of the society, especially of the women and the
children. The Act was enacted with a purpose to ban the use of sex
selection techniques before or after conception; prevent the misuse of
pre-natal diagnostic techniques for sex selection abortions and to regulate
such techniques. It is mandatory to maintain proper record in respect of
use of ultrasound machines under the Act. For effective implementation
of the Act, a hierarchy of Appropriate Authority at State, District and
Sub-District level is created.
13. It is contended that ultrasonography test on a pregnant woman
is considered to be an important part of a pre-natal diagnostic test and
the person conducting such test has to maintain a complete record thereof
in the manner prescribed in the rules and a deficiency or inaccuracy in
maintaining such records would amount to an offence. Chapter VII of
the Act prescribes offences and penalties and there is no gradation of
offences under the Act as it does not classify offences. Equating the
clerical errors on same footing with the actual offence of sex determination
is in compliance with the provisions of the Act and rules thereunder.
The Act does not differentiate among the violations committed by doctors
and provides for punishment for all violations under the Act. The Act
prescribes punishment in furtherance of its object and purposes which is
to prevent detection of female foetus which is in the larger public interest,
hence Section 23 of the Act does not violate Articles 14 and 21. It is
further averred that right to practice a profession under Article 19(1)(g)
of the Constitution is not an absolute right.
14. It is contended that petitioner-Society in the garb of social
cause is trying to mislead this Court and a criminal act cannot be protected
under the umbrella of the Article 19. The offences under the Act are
per se criminal and no exemption can be sought for criminal violations in
the guise of public interest or right to freedom.
15. It is contended that the Appropriate Authority conducts
inspection pursuant to the directions issued by this Court in Centre for
Enquiry into Health & Allied Themes (CEHAT) v. Union of India,
(2003) 8 SCC 398, wherein it was directed to constitute National
Inspection and Monitoring Committee for conducting inspections. As
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the sex determination is hatched in secrecy and committed in privacy
and as both the parties are hand in glove with each other, therefore it
becomes difficult to detect the commission of the offence, hence traps
are usually laid or raids are conducted by the inspecting authorities and
sometimes non-maintenance of records or incomplete records may
provide substantial evidence towards the commission of offence. It is
further submitted that the Act specifically provides for the record keeping
under Rule 9 of the Pre-conception and Pre-natal Diagnostic Techniques
(Prohibition of Sex Selection) Rules, 1996 (hereinafter referred to as
'the Rules') and any deficiency or inaccuracy in record keeping amounts
to violation of Sections 5 and 6 of the Act.
16. The respondents contend that record keeping is important for
proper implementation of the Act and the stringent provisions with regard
to maintenance of records and punishment for non-compliance cannot
be equated or considered as infirmity of the Act. If it is exempted from
the mandatory requirement, the probably involvement in sex determination
and sex selection in the guise of use of diagnostic techniques would
continue unabated.
17. It is also contended that the purpose of Form 'F' is to maintain
personal and medical record of the patient visiting the Pre-Natal
Diagnostic Clinic to avail the services and confirmation regarding the
consent of the patient/pregnant woman with regard to the prohibition of
communication of the sex of foetus so as to avoid abuse of the technology.
Section 4(3) of the Act requires every Genetic Counselling Centre/Genetic
Clinic to fill Form 'F'. The filling of Form 'F' is commensurate with the
objects of the Act which is to regulate the technology and to avoid the
abuse of the technology for the purpose of sex determination. It gives
the insight into the reasons for conducting ultrasonography and incomplete
Form 'F' raises presumption of doubt against the medical practitioner
and in the absence of Form 'F', the Appropriate Authority will have no
means to supervise the usage of the ultrasonography machine and shall
not be able to regulate the use of the technique. The non-maintenance
of records is not merely a technical or procedural lapse in the context of
sex determination, it is the most significant piece of evidence for identifying
the accused. It is further contended that clerical errors in Form 'F' fall
under Section 4 of the Act and any deficiency or inaccuracy found therein
shall amount to contravention of the provisions of Section 5 or 6 of the
Act unless contrary is proved by the person conducting such
ultrasonography.
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18. It is contended that every aggrieved person, who suffered
from any procedural irregularity, can avail legal remedy as provided under
Section 21 of the Act and Rule 19 of the Rules.
19. The respondents have placed reliance on decision rendered
by High Court of Gujarat in Suo Motu v. State of Gujarat, (2009) 1
GLR 64, which dealt with the issue of proper maintenance of records
and to the decision rendered by High Court of Rajasthan in S.K. Gupta
v. Union of India, wherein it was observed that female infants have
also right to live. There is right of still born child to be looked after
properly during pregnancy. Once a child is conceived, it has to be treated
with dignity. Such right cannot be denied and practice of female foeticide/
infanticide is prevailing at large which is illegal and unconstitutional.
20. The respondents have also drawn our attention to the provisions
of Regulation 1.3 of the Indian Medical Council (Professional Conduct,
Etiquette and Ethics) Regulations, 2002; Regulation 6.2 of Pharmacy
Practice Regulation, 2015; and Transplantation of Human Organs and
Tissues Act, 1994, which contains the provisions with respect to
maintenance of proper records.
21. It is submitted that Section 23 and Section 25 are complimentary
to each other, not contradictory as contended by the petitioner-Society.
It is lastly contended that no case for striking down the proviso to Section
4(3) is made out.
22. Shri Soli J. Sorabjee and Shri Shyam Divan, learned senior
counsel urged that present is the classic example of unequals being treated
as equals. Due to inherent infirmity in the Act, whereunder members of
the petitioner-Society are treated unequally as mere clerical errors has
resulted in breach of personal liberties.