Non maintenance of record not just a clerical error but the spring board for commission of offence of foeticide

Supreme Court: Refusing to strike down Section 23 of the Pre-­conception and Pre­-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, the bench of Arun Mishra and Vineet Saran, JJ held,

“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.”

The Court was hearing the plea of the Federation of Obstetrics and Gynecological Societies of India (FOGSI), the apex body of obstetricians and gynaecologists of the country, highlighting the issues and problems affecting the practice of obstetricians and gynaecologists across the country under the PCPNDT 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.

It was contended by the Society 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 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.”

It was argued that the ambiguous wording of Section 23(1) of the Act has resulted in grave miscarriage of justice and the members of the petitioner­Society have faced grave hardships and have undergone criminal prosecution for act, which cannot be equated with the acts of sex determination.

Rejecting the contentions of the Society, the Court held that 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.”

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.

[Federation of Obstetrics and Gynecological Societies of India (FOGSI), v. Union of India, 2019 SCC OnLine SC 650, decided on 03.05.2019]

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