| Act(s) Referred |
Constitution of India, Constitution of India Pre-conception and Pre-natal Diagnostic Techniques (prohibition of Sex Selection) Act, 1994 (57 of 1994) Indian Medical Council Act, 1956 (102 of 1956) Indian Evidence Act, 1872 (1 of 1872) Transplantation of Human Organs and Tissues Act, 1994 (42 of 1994) Medical Termination of Pregnancy Act, 1971 (34 of 1971) |
| 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 ofthe 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 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). |
