Hon'ble Supreme Court of India upholds the constitutional validity of Section 23 and Sections 20 & 30 of the PCPNDT Act

Complete contents of Form F are mandatory

healthysoch

New Delhi, May 07, 2019 :

Landmark Judgment

In a landmark judgement, the Hon’ble Supreme Court of India had upheld the constitutional validity of Section 23 and Section 20 & 30 of the PCPNDT Act; the complete contents of Form F are mandatory.

The medical profession has lost an important opportunity to defend penal provisions for clerical errors. Had all the medical bodies focused and fought together this may not have happened. So many doctors in the present cabinet of ministers and yet none fought at the level of parliament to resolve this issue. Penal provisions will now become a reality in all new laws unless the newly elected government decides to change this after the 23^rd of May. Many think it otherwise. Supreme Court judgment is only an interpretation of the existing laws, which can only be changed by the parliament and political will.

When I was the General Secretary and National President of IMA, I remember that the Health Ministry had agreed to take away the penal provisions for clerical errors and adopt graded punishments. But I fail to understand what transpired FOGSI to fight alone ignoring other medical bodies.

Let us see what the court said.

In the matter titled as “Federation of Obstetrics and Gynaecological Societies of India (FOGSI) versus Union of India, Writ Petition (Civil) No. 129 of 2017 vide judgment dated 03.05.2019 passed by Hon’ble Mr. Justice Arun Mishra and Hon’ble Mr. Justice Vineet Saran it was held that no case is made out for striking down the proviso to Section 4(3), provisions of section 23(1), Section 23(2) or to read down Section 20 or 30 of the Pre- Conception and Pre Natal Diagnostics Techniques (Prohibition of Sex Selection) Act, 1994 (PCPNDT Act). It was also held that the complete contents of “Form F” are mandatory. Thereby upholding the constitutional validity of proviso to Section 4(3), provisions of section 23(1), Section 23(2) and Form F of PCPNDT Act.

Case details

The said writ petition was filed by FOGSI highlighting the issues and problems affecting the practice of obstetricians and gynaecologists across the country under PCPNDT Act and challenging the constitutional validity of Sections 23(1) and Section 23(2) of the PCPNDT Act and seeking directions in the nature of certiorari / mandamus for decriminalising anomalies in paperwork/record keeping/clerical errors in regard to the provisions of the Act for being violative of Articles 14, 19(1)(g) and 21 of the Constitution of India.

It was contented by FOGSI that:

Equating clerical errors on the same footing with the actual offence of sex determination shows inherent weakness in the language of the Act.ii. Appropriate Authority appointed under the Act conducts inspections and raids in various districts and cities even if there are mere anomalies in the paperwork, it seals the sonography machine and files a criminal case under the Act. Doctors who do not conduct sex determination and gender selection are being targeted on the basis of aforesaid anomalies.iii. 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.iv. 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.v. 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.vi. 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.vii. 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.

Judgement

After hearing the matter, the Hon’ble Apex Court has held that:

“85. 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 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.

In view of the aforesaid discussion and in our opinion, 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 prerequisites is totally prohibited under the Act. The no maintenance of record is very foundation of offence. For first and second offences, gradation has been made which is quite reasonable.
Provisions of Section 23(2) has also been attacked on the ground that suspension on framing the charges should not be on the basis of clerical mistake, inadvertent clerical lapses. As we found it is not what is suggested to be clerical or technical lapse nor it can be said to be inadvertent mistakes as existence of the particular medical condition is mandated by Sections 4 and 5 including the age etc. Thus, suspension on framing of charges cannot be said to be unwarranted. The same intends to prevent mischief. We are not going into the minutes what can be treated as a simple clerical mistake that has to be seen case wise and no categorization can be made of such mistakes, if any, but with respect to what is mandatory to be provided in the Form as per provisions of various sections has to be clearly mentioned, it cannot be kept vague, obscure or blank as it is necessary for undertaking requisite tests, investigations and procedures. There are internal safeguards in the Act under the provisions relating to appeal, the Supervisory Board as well as the Appropriate Authority, its Advisory Committee and we find that the provisions cannot be said to be suffering from any vice as framing of the charges would mean prima facie case has been found by the Court and in that case, suspension cannot be said to be unwarranted.
It was also prayed that action should be taken under Section 20 after show cause notice and reasonable opportunity of being heard. There is already a provision in Section 20(1) to issue a show cause and in Section 20(2) contains the provision as to reasonable opportunity of being heard. Thus, we find no infirmity in the aforesaid provision.
There also the Appropriate Authority to consider each case on merits with the help of Advisory Body which has legal expert. The Advisory Committee consists of one legal expert which has to aid and advise the Appropriate Authority as provided in Sections 16 and 17(5)(6). Thus, the submission that legal advice should be taken before prosecution, in view of the provisions, has no legs to stand.
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 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 as discussed above.
In light of the nature of offences which necessitated the enactment of the Act and the grave consequences that would ensue otherwise, suspension of registration under Section 23(2) of the Act serves as a deterrent. The individual cases cited by the petitioner Society cannot be a ground for passing blanket directions, and the individuals have remedies under the law which they can avail. Moreover, the concept of double jeopardy would have no application here, as it provides that a person shall not be convicted of the same offence twice, which is demonstrably not the case here. Suspension is a step-in-aid to further the intendment of act. It cannot be said to be double punishment. In case an employee is convicted for an offence, he cannot continue in service which can be termed to be double jeopardy.
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.
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.
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, gynaecologist, 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 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.
In view of the above, 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.”