Complete contents of Form F are mandatory
Landmark Judgment
Dr KK Aggarwal & Ira Gupta
In a landmark judgement, the Hon’ble Supreme Court of India had upheld the
constitutional validity of Section 23 and Section 20 & 30 of the PCPNDT
Act; the complete contents of Form F are
mandatory.
The medical profession has
lost an important opportunity to defend penal provisions for clerical errors.
Had all the medical bodies focused and fought together this may not have
happened. So many doctors in the present cabinet of ministers and yet none
fought at the level of parliament to resolve this issue. Penal provisions
will now become a reality in all new laws unless the newly elected government
decides to change this after the 23rd of May. Many think it
otherwise. Supreme Court judgment is only an interpretation of the existing
laws, which can only be changed by the parliament and political will.
When I was the General
Secretary and National President of IMA, I remember that the Health Ministry
had agreed to take away the penal provisions for clerical errors and adopt
graded punishments. But I fail to understand what transpired FOGSI to
fight alone ignoring other medical bodies.
Let us see what the court
said.
In the matter
titled as “Federation of Obstetrics and Gynaecological Societies of
India (FOGSI) versus Union of India, Writ Petition (Civil) No. 129 of 2017 vide
judgment dated 03.05.2019 passed by Hon’ble Mr. Justice Arun Mishra and Hon’ble
Mr. Justice Vineet Saran it was held that no case is made out for
striking down the proviso to Section 4(3), provisions of section 23(1), Section
23(2) or to read down Section 20 or 30 of the Pre- Conception and Pre Natal
Diagnostics Techniques (Prohibition of Sex Selection) Act, 1994 (PCPNDT Act).
It was also held that the complete contents of “Form F” are mandatory. Thereby
upholding the constitutional validity of proviso to Section 4(3), provisions of
section 23(1), Section 23(2) and Form F of PCPNDT Act.
Case details
The said writ petition was
filed by FOGSI highlighting the issues and problems affecting the practice of
obstetricians and gynaecologists across the country under PCPNDT Act and
challenging the constitutional validity of Sections 23(1) and Section 23(2) of
the PCPNDT Act and seeking directions 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.
It was contented by FOGSI
that:
i. Equating
clerical errors on the same footing with the actual offence of sex
determination shows inherent weakness in the language of the Act.
ii. Appropriate
Authority appointed under the Act conducts inspections and raids in various
districts and cities even if there are mere anomalies in the paperwork, it
seals the sonography machine and files a criminal case under the Act. Doctors
who do not conduct sex determination and gender selection are being targeted on
the basis of aforesaid anomalies.
iii. 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.
iv. 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.
v. 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.
vi. 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.
vii. 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.
Judgement
After hearing the matter, the
Hon’ble Apex Court has held that:
“85. 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.
86. 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 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 non-maintenance of record as undertaking the test
without the prerequisites is totally prohibited under the Act. The no
maintenance of record is very foundation of offence. For first and second
offences, gradation has been made which is quite reasonable.
87. 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 simple 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.
88. 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.
89. 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.
90. 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 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.
91. 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.
92. 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.
94. 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, gynaecologist, 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.
95. 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.
96. 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.”
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
