Case Study

Non maintenance of record is spring board for commission of offence of foeticide

Federation of Obstetrics and Gynecological Societies of India v. Union of India and others WP (Civil) No.129 OF 2017, decided by the Supreme Court of India on 03.05.2019

Relief Sought: The writ petition was filed by the Federation of Obstetrics and Gynaecological Societies of India (FOGSI) highlighting the issues and problems affecting the practice of obstetricians and gynaecologists across the country under the Pre­conception and Pre­natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 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 , its implementation was more in letter and less in spirit, and 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.

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 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 petitioner­Society, 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. 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.

Counter by Union of India: That ultrasonography test on a pregnant woman is considered to be an important part of a pre­natal 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. Right to practice a profession under Article 19(1)(g) of the Constitution is not an absolute right. 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 non­maintenance 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. 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.

Held: 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 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 non­maintenance of record as undertaking the test without the pre­requisites 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.  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 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. 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. 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.93. 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, 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 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.

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