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To start with, the Supreme Court in a latest, landmark and laudable judgment titled Federation of Obstetrics and Gynecological Societies of India (FOGSI) Vs. Union of India and others in Writ Petition (Civil) No. 129 of 2017 delivered on May 3, 2019 and authored by Justice Arun Mishra for himself and Justice Vineet Saran has clearly and convincingly upheld 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. While dismissing a writ petition filed by FOGSI, the Bench of Apex Court unequivocally observed that dilution of the provisions of the Act or the Rules would only defeat the purpose of the Act to prevent female foeticide and regulate the right to life of the girl child under Article 21 of the Constitution to a mere formality. There can be no denying it!

First and foremost, the ball is set rolling in para 1 wherein it is observed that, “The instant writ petition has been filed by the Federation of Obstetrics and Gynaecological Services 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 to 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.”

Needless to say, it is then observed in para 2 that, “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.”

Furthermore, it is then pointed out in para 3 that, “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 woman 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.”

Not stopping here, it is then mentioned in para 4 that, “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.” Para 5 then states that, “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.”

To be sure, para 6 then stipulates that, “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.”

As things stood, para 7 then enunciates that, “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 have the right to be presumed innocent until proven 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”.”

Going forward, para 8 then spells out that, “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 to 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.” Para 9 then discloses that, “The petitioner-Society has further placed reliance on the decisions rendered by this Court in cases of penal statutes to give proper effect to the scheme of various interests involved by striking down/reading down/diluting the concerned penal provisions.”

Moving on, para 10 then states that, “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.” Para 11 then points out: “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.”

On the contrary, para 12 then brings out that, “Respondent Nos. 1 to 4 has refuted the claims of the petitioner-Society 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 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.”

Truth be told, the Bench makes it amply clear in para 79 that, “Considering the compelling general public interest and gender justice and declining sex ratio, we have no hesitation in upholding the validity of the provisions of Section 23(1) of the Act.

What’s more, it is then observed in para 81 that, “We find that Act intends not to jeopardize the female foetus. As such curtailment of the liberty in cause of such a violation cannot be said to be disproportionate.”

To put things in perspective, it is then held in para 83 that, “There can be a legislative provision for imposing burden of proof in reverse order relating to gender justice. In the light of prevalent violence against women and children, the Legislature has enacted various Acts, and amended existing statutes, reversing the traditional burden of proof. Some examples of reversed burden of proof in statutes include Sections 29 and 30 of the Protection of Children from Sexual Offences (POCSO) Act in which there is presumption regarding commission and abetment of certain offences under the Act, and presumption of mental state of the accused respectively. In Sections 113-A and 113-B of the Indian Evidence Act there is presumption regarding abetment of suicide and dowry death, and in Section 114-A of the Indian Evidence Act there is presumption of absence of consent of prosecutrix in offence of rape.”

Going one step forward, it is then pointed out in para 84 that, “These provisions are a clear indication of the seriousness with which crimes against women and children have been viewed by the Legislature. It is also evident from these provisions that due to the pervasive nature of these crimes, the Legislature has deemed it fit to employ a reversed burden of proof in these cases. The presumption in the proviso to Section 4(3) of the Act has to be viewed in this light.”

No wonder, it is then clarified in para 85 that, “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.”

As it turned out, para 86 then minces no words in holding that, “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 of 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 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.”

Be it noted, it is then held in para 87 that, “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 sample 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.”

Of course, para 88 then goes on to add that, “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.” Para 89 then states that, “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.”

More importantly, para 90 then illustrates that, “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 practice 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.”

To put it succinctly, it is then held in para 91 that, “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.”

Bluntly put, para 92 then minces no words in making it absolutely clear 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 Section 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.”

It has to be borne in mind that it is then held in para 93 that, “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.”

It would be pertinent to also take note of what para 94 says. It states that, “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.”

As a consequence, it is then held in para 95 that, “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.”

Finally and perhaps most importantly, it is then held in the last para 96 that, “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. Thus, the writ petition is dismissed. No costs.”

In conclusion, it may well be said that the two Judge Bench of Apex Court comprising of Justice Arun Mishra and Justice Vineet Saran have in this landmark case refused to dilute the provisions of the PCPNDT Act, 1994, clearly held the complete contents of Form ‘F’ mandatory and also upheld the Constitutional validity of Section 23(1) and Section 23(2) of this Act. It has also send a point blank message that dilution of the provisions of the Act or the Rules would only serve to 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!

Not just this, it has categorically said that giving preference to male child is against Constitutional duty to renounce practices derogatory to women’s dignity. It is also violative of Article 39A of the Constitution and against mandate of Article 51A(e) which casts a Constitutional duty on citizens to renounce practices derogatory to the dignity of women! We all must always bear this in mind and adhere in letter and spirit to what the Supreme Court has held so explicitly and elegantly in this landmark and laudable case if we really want our nation to progress and prosper! No nation can ever progress and prosper where female foeticide is allowed to go on rampantly with full impunity! Can we ever allow this? It is for us to decide for ourselves that what exactly do we want to do! No point in worshipping Devi or Goddess if we can’t respect women and girl child and are not ready to even allow her to come to being as an independent being!

 

Sanjeev Sirohi,


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