Dr K Aggarwal & Advocate Ira Gupta
In the matter titled as “All India
Ophthalmological Society through its President versus Union of India &
Others, WP© No. 12057/2018” vide order dated 09.01.2019, the Hon’ble
High Court of Delhi has stayed the operation of the letter dated 01.06.2018
issued by the Union of India to all Principal Secretary Health of All States /
UTs to take necessary steps to implement the proposal of registration of all
units, which use ultrasound machines for ophthalmology, echocardiography,
urology and others under Pre-Natal Diagnostic Techniques (Regulation and
Prevention of Misuse) Act, 1994 .
Facts of the case
i. The
petitioner no.1 (All India Ophthalmological Society) is a registered society
and is an association of about 21000 Ophthalmologists across India. Members of the
petitioner’s society specialise in eye surgeries such as cataract surgeries and
in this process use of ultrasound imaging machines, which have a scanning
frequency of about 10 Mhz and a penetration depth of about 60mm.
ii. The
petitioners have filed the present petition, inter alia, impugning a letter
dated 01.06.2018 whereby respondent no.1 has directed the Principal Secretary
Health of All States/UTs to take necessary steps to implement the proposal for
registration of all units, which use ultrasound machines for ophthalmology,
echocardiography, urology an others under Pre-Natal Diagnostic Techniques
(Regulation and Prevention of Misuse) Act, 1994 (hereafter ‘the Act’). This is
premised on the basis that the such machines are also capable of being modified
to determine the sex of a foetus.
iii. The said
instructions are without jurisdiction and beyond the scope of the Act.
iv. The
petitioner’s contention was that Section 18 (5) of the Act, which expressly
provides that no genetic Counselling Centre, Genetic Laboratory or Genetic
Clinic shall be registered unless the Appropriate Authority is satisfied that
such Centre, Laboratory or Clinic is in a position to provide such facilities
and maintain such equipment and standards as may be prescribed. In view of the
above provisions Ophthalmologist clinics cannot be registered under Section 18
of the Act as they does not maintain the standards as required of a Genetic
Counselling Centre, Genetic Laboratory or Genetic Clinic.
Order of the Hon’ble High Court
After hearing all the contentions of the petitioners, the
Hon’ble High Court held that there is merit in the contentions of the
petitioners and issued notice to all the other parties in the case.
Also, in the meanwhile the Hon’ble Court has stayed the
operation of the letter dated 01.06.2018 till the next date of hearing on
27.7.2019.
Other judgments relating to PCPNDT Act
IMA had filed writ petition being WP(C)
No. 2721/2014 titled as “India Medical Association versus Union of India &
Others before the Hon’ble High Court of Delhi against the provisions
of PCPNDT Act and Rules. Thereafter vide order and judgment dated
17.02.2016 the Hon’ble High Court of Delhi was pleased to allow the
writ petition filed by the IMA and has held that Section 2(p) of the PCPNDT
Act defining a Sonologist or Imaging Specialist, is bad to the extent it
includes persons possessing a postgraduate qualification in ultrasonography or
imaging techniques. Also, it has been held that if the person seeking
registration (a) makes a declaration in the form to be prescribed by the
Central Supervisory Board to the effect that the said machine or equipment is
not intended for conducting pre-natal diagnostic procedures; (b) gives an
undertaking to not use or allow the use of the same for prenatal diagnostic
procedures; and, (c) has a “silent observer” or any other equipment installed
on the ultrasound machines, as may be prescribed by the Central Supervisory
Board, capable of storing images of each sonography tests done therewith, such
person would be exempt from complying with the provisions of the Act and the
Rules with respect to Genetic Clinics, Genetic Laboratory or Genetic Counseling
Centre.
Against the said order and judgment dated
17.02.2016 passed by the Hon’ble High Court of Delhi, two petition titled as
the Indian Radiological and Imaging Association versus UOI & Anr.,
SLP (C) 11046/2016" and "Union of India versus Indian
Radiological & Imaging Association & Others, SLP (C) No.
16657/2016" have been filed before the Hon’ble Supreme Court of
India. The said petitions are still pending final disposal. The
UOI had filed an application for the stay of high court judgment. After hearing
the applications, the Hon’ble Supreme Court of India has vide order
dated 14.03.2018 stayed the operation of the judgment dated 17.02.2016
passed by the Hon’ble High Court of Delhi in view of the judgement passed by
the Hon’ble Supreme Court in the matter titled as “Voluntary Health Association
of Punjab v Union of India”.
In the matter titled as “Voluntary Health
Association of India versus Union of India,” The Hon’ble Supreme Court of India
vide judgment dated 8 November 2016 had issued comprehensive
directions for the purpose of effective implementation of the provisions of the
Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex
Selection) Act, 1994. The directions issued by this Court are extracted below:
“33. Keeping in view the deliberations made from time to
time and regard being had to the purpose of the Act and the far reaching impact
of the problem, we think it appropriate to issue the following directions in
addition to the directions issued in the earlier order:-
(a) All the States and the Union Territories in India
shall maintain a centralized database of civil registration records from all
registration units so that information can be made available from the website
regarding the number of boys and girls being born.
(b) The information that shall be displayed on the
website shall contain the birth information for each District, Municipality,
Corporation or Gram Panchayat so that a visual comparison of boys and girls
born can be immediately seen.
(c) The statutory authorities if not constituted as
envisaged under the Act shall be constituted forthwith and the competent
authorities shall take steps for the reconstitution of the statutory bodies so
that they can become immediately functional after expiry of the term. That
apart, they shall meet regularly so that the provisions of the Act can be
implemented in reality and the effectiveness of the legislation is felt and
realized in the society.
(d) The provisions contained in Sections 22 and 23 shall
be strictly adhered to. Section 23(2) shall be duly complied with and it shall
be reported by the authorities so that the State Medical Council takes
necessary action after the intimation is given under the said provision. The
Appropriate Authorities who have been appointed under Section 17(1) and 17(2)
shall be imparted periodical training to carry out the functions as required
under various provisions of the Act.
e) If there has been violation of any of the provisions
of the Act or the Rules, proper action has to be taken by the authorities under
the Act so that the legally inapposite acts are immediately curbed.
(f) The Courts which deal with the complaints under the
Act shall be fast tracked and the concerned High Courts shall issue appropriate
directions in that regard.
(g) The judicial officers who are to deal with these
cases under the Act shall be periodically imparted training in the Judicial
Academies or Training Institutes, as the case may be, so that they can be
sensitive and develop the requisite sensitivity as projected in the objects and
reasons of the Act and its various provisions and in view of the need of the
society.
(h) The Director of Prosecution or, if the said post is
not there, the Legal Remembrancer or the Law Secretary shall take stock of
things with regard to the lodging of prosecution so that the purpose of the Act
is subserved.
(i) The Courts that deal with the complaints under the
Act shall deal with the matters in promptitude and submit the quarterly report
to the High Courts through the concerned Sessions and District Judge.
(j) The learned Chief Justices of each of the High Courts
in the country are requested to constitute a Committee of three Judges that can
periodically oversee the progress of the cases.
(k) The awareness campaigns with regard to the provisions
of the Act as well as the social awareness shall be undertaken as per the
direction No.9.8 in the order dated March 4, 2013 passed in Voluntary Health
Association of Punjab (supra).
(l) The State Legal Services Authorities of the States
shall give emphasis on this campaign during the spread of legal aid and involve
the para-legal volunteers.
(m) The Union of India and the States shall see to it
that appropriate directions are issued to the authorities of All India Radio
and Doordarshan functioning in various States to give wide publicity pertaining
to the saving of the girl child and the grave dangers the society shall face
because of female foeticide.
(n) All the appropriate authorities including the States
and districts notified under the Act shall submit quarterly progress report to
the Government of India through the State Government and maintain Form H for
keeping the information of all registrations readily available as per sub-rule
6 of Rule 18A of the Rules.
(o) The States and Union Territories shall implement the
Preconception and Pre-natal Diagnostic Techniques (Prohibition of Sex
Selection) (Six Months Training) Rules, 2014 forthwith considering that the
training provided therein is imperative for realising the objects and purpose
of this Act.
(p) As the Union of India and some States framed
incentive schemes for the girl child, the States that have not framed such
schemes, may introduce such schemes.”
Dr KK Aggarwal
Padma Shri Awardee
President Elect Confederation of Medical
Associations in Asia and Oceania
(CMAAO)
Group Editor-in-Chief IJCP Publications
President Heart Care Foundation of India
Past National President IMA
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