FEDERATION OF OBSTETRICS AND GYNECOLOGICAL SOCIETIES OF INDIA (FOGSI) versus UNION OF INDIA AND OTHERS on 3 May 2019

SUPREME COURT REPORTS [2019] 7 S.C.R. 12

[2019] 7 S.C.R.

AFEDERATION OF OBSTETRICS AND GYNECOLOGICALSOCIETIES OF INDIA (FOGSI)

v.

UNION OF INDIA AND OTHERS

(Writ Petition (Civil) No.129 of 2017)

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MAY 03, 2019

[ARUN MISHRA AND VINEET SARAN, JJ.]

Pre-conception and Pre-natal Diagnostic Techniques(Prohibition of Sex Selection) Act, 1994 – ss.23(1) and 23(2) –CConstitutional validity of – The petitioner-Society contended that s.23(2) of the Act is ultra-vires the Constitution as it assumes the guiltof the alleged accused even before his/her conviction by a competentcourt and hence violates the fundamental right guaranteed u/Art.21of the Constitution – Held: s.23 is not a stand alone section – It isDrather used in the enforcement of other provisions of the Act andviolations of s.23 are often accompanied by violations of provisionsof ss.4, 5, 6 and 18 of the Act – It provides for punishment for anymedical geneticist, gynecologist, registered medical practitioner ora person who owns a Genetic Counselling Centre, a Genetic clinicor a Genetic Laboratory, and renders his professional or technicalEservices to or at said place, whether on honorarium basis orotherwise and contravenes any provisions of the Act, or the Rulesunder it – Therefore, dilution of the provision of the Act would onlydefeat the purpose of the Act to prevent female foeticide and relegatethe right to life of the girl child u/Art.21 of the Constitution, to aFmere formality – Thus, no case made out for striking down theprovisions of ss.23(1) and 23(2).

Pre-conception and Pre-natal Diagnostic Techniques(Prohibition of Sex Selection) Act, 1994 – Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Rules,G1996 – 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 likeincomplete ‘F’ forms/clerical mistakes/record keeping in regard of H

the provisions of the Act for being violative of Arts. 14, 19(1)(g)and 21 of the Constitution – Held: Though Form ‘F’ is a clericalrequirement, but if any information in the form is avoided, it willresult 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 hasto fulfil pre-requisites for undertaking the procedure in case theconditions precedent for undertaking pre-natal diagnostic test isnot specifically mentioned, it would be violative of provisionscontained in s.4 – In case the indications and the information arenot furnished as provided in the Form ‘F’ it would amount thatcondition precedent to undertake the test/procedure is absent – Thereis no other barometer except form ‘F’ to find out why the diagnostictest/procedure was performed – Form ‘F’ lays down the indicativelist for conducting ultra-sonography during pregnancy – Further,Form ‘F’ being technical in nature gives the insight into the reasonsfor conducting ultra-sonography and incomplete Form ‘F’ raisesthe presumption of doubt against medical practitioner – Insofar asmaintaining of record is concerned, they have to maintained onlywhen the procedure or tests are conducted on pregnant woman orwhen patient may have been advised to use pre-conceptiondiagnostic tools to conceive a child – The scheme of the Act makesit evident that record keeping is meant to track/monitor and regulatethe use of technology that has potential of sex selection and sexdetermination – As the entries are mandatory and sine qua non forundertaking a test/procedure, the assertion that their fundamentalrights are being violated by not providing requisite information isnot 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 conductingultrasonography on a pregnant woman, is required to keep completerecord of the same in the prescribed manner and any deficiency orinaccuracy in the same amounts to contravention of s.5 or s.6 ofthe Act, unless the contrary is proved by the person conducting thesaid ultrasonography – The aforementioned proviso to s.4(3) reflectsthe importance of records in such cases, as they are often the only A

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Asource to ensure that an establishment is not engaged in sex-determination – Thus, there is no substance in the contention thatprovision of s.4(3) be read down.

Pre-conception and Pre-natal Diagnostic Techniques(Prohibition of Sex Selection) Act, 1994 – s.30 – Pre-conceptionBand Pre-natal Diagnostic Techniques (Prohibition of Sex Selection)Rules, 1996 – rr.11 and 12 – Indian Medical Council (Professionalconduct, Etiquette and Ethics) Regulations, 2002 – Petitioner-societycontended that the action of seizure of ultra-sonography machineand sealing the premises by the competent authority cannot be saidto be appropriate – Held: s. 30 of the Act enumerates the power ofCsearch and seizure and rr. 11 & 12 of the Rules provide for thepower of the Appropriate Authority to seal equipment, inspectpremises and conduct search and seizure – It is settled propositionthat when offence is found to be committed, there can be seizureand sealing of the premises and equipment during trial as no licenseDcan be given to go on committing the offence – Such provisions ofseizure/sealing, pending trial are to be found invariably in variouspenal legislations – The impugned provisions contained in the Actconstitute reasonable restrictions to carry on any profession whichcannot be said to be violative of Right to Equality enshrined u/Art.14 or right to practise any profession u/Art. 19(1)(g) – ConsideringEthe Fundamental Duties u/Art. 51A(e) and considering that femalefoeticide is most inhumane act and results in reduction in sex ratio,such provisions cannot be said to be illegal and arbitrary in anymanner besides there are various safeguards provided in the Act toprevent arbitrary actions – Thus, contention of the petitioner Frejected – Constitution of India – Arts.19(1)(g), 14, 51A(e).

Dismissing the writ petition, the Court

HELD : 1. When the Form ‘F’ is scrutinised with theprovisions of the Pre-conception and Pre-natal DiagnosticTechniques (Prohibition of Sex Selection) Act, 1994/Pre-Gconception and Pre-natal Diagnostic Techniques (Prohibition ofSex Selection) Rules, 1996 and there cannot be any dispute withrespect to serial Nos.1 and 2 wherein name and address ofGenetic Laboratory and its registration number is required to bementioned in the Form as it is necessary to have a registrationunder Section 18 of the Act. It cannot be said to be a clericalH

requirement. Patient name and her age at serial No.3 is alsoabsolutely necessary so as to identify a person who is undergoingthe test and before the age of 35 years, it cannot be conducted asprovided under Section 4(3)(i). The same is as per the mandatoryrequirement of Section 4. Husband’s/father’s name is alsonecessary as per the statutory mandate for the purpose ofidentification of patient. Full address is also mandatory so as toascertain the identity who is undergoing such test. In case theseinformation are kept vague, the violation of the Act would beblatant and unchecked and offence can never be detected.Information at serial No.8 of the Form ‘F’ requires last menstrualperiod/weeks of pregnancy to be mentioned, same is alsonecessary to be mentioned as it has co-relation with theinvestigations and provisions of the Act and the rules framedthereunder. The column in Form at serial No.9 requires historyof genetic/medical disease in the family to be specified which isas per the mandate of Section 4(3)(iv) of the Act. Form ‘F’ atserial No.10 requires indication for pre-natal diagnosis which ismandatory as per the provisions contained in Section 4(2) asexcept for the purposes as mentioned in Sections 4(2) and 4(3)no such tests/procedures can be performed. Thus, what ismandated by the Sections and in Rule 9 has been mentioned inthe Form ‘F’. Procedure carried whether invasive or non-invasivehas to be obviously mentioned and in case any laboratory testshave been recommended that is to be mentioned along with theresult. The note attached to Form ‘F’ also contains therepresentative list of indications when ultrasound duringpregnancy can be performed. Thus, though the submission thatForm ‘F’ is clerical requirement urged by the petitioner-Societyappears at the first blush to be worthy examination, but on closescrutiny it is found that in case any information in the Form isavoided, it will result in the blatant violation of the provisions ofSection 4 and may lead to result which is prohibited under Section6. It cannot be said to be a case of clerical error as doctor has tofulfil pre-requisites for undertaking the procedure in case theconditions precedent for undertaking pre-natal diagnostic test isnot specifically mentioned, it would be violative of provisionscontained in Section 4. The Form ‘F’ has to be prepared and ABCDE

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Asigned by either Gynaecologist/Medical Geneticist / Radiologist/ Paediatrician / Director of the Clinic/Centre/Laboratory. In casethe indications and the information are not furnished as providedin the Form ‘F’ it would amount that condition precedent toundertake the test/procedure is absent. There is no otherbarometer except Form ‘F’ to find out why the diagnostic test/Bprocedure was performed. In case such an important informationbeside others is kept vague or missing from the Form, it woulddefeat the very purpose of the Act and the safeguards providedthereunder and it would become impossible to check violation ofprovisions of the Act. It is not the clerical job to fill the form, it isCcondition precedent for undertaking test/procedure. With all dueregards to the submission advanced on behalf of petitioner-Society that it is a clerical job, is wholly without substance but itis a responsible job of the person who is undertaking such a testi.e., the Gynaecologist/ Medical Geneticist/Radiologist/Paediatrician/Director of the Clinic/Centre/Laboratory to fill theDrequisite information. In case he keeps it vague, he knows fullywell that he is violating the provisions of the Act and undertakingthe test without existence of the conditions precedent which aremandatory to exist he cannot undertake test/procedure withoutfilling such information in the form. There is no other way toEensure that test is undertaken on fulfilment of the prescribedconditions. There is nothing else but the record which requiredto be maintained and on the basis of which counter-check can bemade. There is no other barometer or criteria to find out theviolation of the provisions of the Act. Rule 9(4) also requiresthat every Genetic Clinic to fill Form ‘F’ wherein informationFwith regard to details of the patient, referral notes with indicationand case papers of the patient are required to be filled andpreserved. Form ‘F’ lays down the indicative list for conductingultrasonography during pregnancy. Form ‘F’ being technical innature gives the insight into the reasons for conductingGultrasonography and incomplete Form ‘F’ raises the presumptionof doubt against the medical practitioner. In the absence of Form‘F’, Appropriate Authorities will have no tool to supervise theusage of ultrasound machine and shall not be able to regulate theuse of the technique which is the object of the Act. [Para 59][63-A-H; 64-A-H]H

2. It is rightly contended on behalf of respondents that thereare different forms for record keeping prescribed under the Actand the Rules they are important and interlinked, operate intandem with one another. These records have to be maintainedonly when the procedure or tests are conducted on pregnantwoman or when patient may have been advised to use pre-conception diagnostic tools to conceive a child. It is required forGenetic Counselling Centre advising the procedure/test with apotential of detecting or determining the sex of the foetus andreferring a person to a Genetic Clinic/Imaging Centre/UltrasoundClinic to record the details of Genetic Clinic to which patient isreferred at point 15 of the Form ‘D’ along with the details of thediagnosis and relevant medical details of the person. Accordingly,Genetic Clinic/Imaging Centre/Ultrasound Clinic conducting theaforesaid referred procedure has to record the name and addressof Genetic Counselling Centre with the referral slip along withthe relevant medical record of the person on whom procedure/test/technique is conducted. The aforesaid record keepingprocedure shall be followed by Genetic Laboratories also. Thescheme of the Act makes it evident that record keeping is meantto track/monitor and regulate the use of technology that haspotential of sex selection and sex determination. Section 23 isnot stand-alone Section. It is rather used in the enforcement ofother provisions of the Act and violations of Section 23 are oftenaccompanied by violations of provisions of Sections 4, 5, 6 and18 of the Act. It is submitted that non-maintenance of record inthe context of sex determination is not merely a technical orprocedural lapse. It is most significant piece of evidence foridentifying offence and the accused. The inspection of records iscrucial to identify wrong-doers as the crime of sex determinationbeing a collusive crime given the nexus between the patientsand the doctors. Accordingly, punishment is provided in Section23 for not maintaining the records. [Para 60] [65-A-F]

3. In R. Sai Bharathi v. J. Jayalalitha it has been observedthat crime is against social order, immoral and harmful act. It hasalso been observed by this Court that legislature can have a lawto constitute an act or omission done by a person against theother as a crime. Considering the evils sought to be remedied it A

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Acannot be said that the imposition in the Act in question isdisproportionate. The restrictions and the provisions ofpunishment have close nexus with the object sought to beachieved. It is not possible to term action as merely clerical oneas that is pre-requisite for the test/procedure and that is what isintended by the Act, if it is given a go-bye under the guise ofBclerical error, the Act would be rendered otiose. Restrictioncannot be said to be excessive and beyond what is required inthe public interest, they cater to the felt need of the society andthe complex issues facing people which the legislature intendsto solve. [Para 77] [84-D-F]C

4. It is apparent from the aforesaid discussion in ShreyaSinghal v. Union of India, in a case where no reasonable standardsare laid down to define guilt in a section which creates an offence,it would be arbitrary and unconstitutional. It is absolutely clearthat the provisions in the Act in question cannot be termed asDarbitrary or illegal or unreasonable. The provisions are not vague.A responsible doctor is supposed to know before undertakingsuch pre-natal diagnostic test etc. what is he undertaking andwhat his responsibilities are. If he cannot understand the formhe is required to fill and the impact of medical findings and itsconsequences which is virtually the pre-requisite for undertakingEa test, he is not fit to be a member of a noble medical profession.Such culpable negligence is not warranted from a doctor. It iscrystal clear from the provisions of the Act which can be gatheredby a person of ordinary intelligence and they can have fair noticeof what is prohibited and what omission they should not make.FThe principles deliberated upon in Shreya Singhal case rathersupports the constitutionality of the Act and the Rules framedthereunder. Considering the compelling general public interestand gender justice and declining sex ratio, there is no hesitationin upholding the validity of the provisions of Section 23(1) of the Act. [Paras 78 and 79] [86-C-F; 88-F]

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5. The Act is a social welfare legislation, which wasconceived in light of the skewed sex-ratio of India and to avoidthe consequences of the same. A skewed sex-ratio is likely tolead to greater incidences of violence against women and increase in practices of trafficking, ‘bride-buying’ etc. The rigorousimplementation of the Act is an edifice on which rests the task ofsaving the girl child. [Para 85] [90-E-F]

6. In the opinion of this Court, no case is made out to holdthat deficiency in maintaining the record mandated by Sections5, 6 and the proviso to Section 4(3) cannot be diluted as theaforesaid provisions have been incorporated in various columnsof the Form ‘F’ and as already held that it would not be a caseclerical mistake but absence of sine qua non for undertaking adiagnostic test/procedure. It cannot be said to be a case of clericalor technical lapse. Section 23(1) need not have provided forgradation of offence once offence is of non-maintenance of therecord, maintenance of which itself intend to prevent femalefoeticide. It need not have graded offence any further differenceis so blur it would not be possible to prevent crime. There neednot have been any gradation of offence on the basis of actualdetermination of sex and non-maintenance of record asundertaking the test without the pre-requisites is totallyprohibited under the Act. The non-maintenance of record is veryfoundation of offence. For first and second offences, gradationhas been made which is quite reasonable. [Para 86] [90-G-H;91-A-B]

7. It was also contended that action of seizure ofultrasonography machine and sealing the premises cannot be saidto be appropriate. The submission is too tenuous and liable tobe rejected. Section 30 of the Act enumerates the power of searchand seizure and Rules 11 and 12 of the Rules provide for thepower of the Appropriate Authority to seal equipment, inspectpremises and conduct search and seizure. It was pointed out bythe respondents that a “Standard Operational Procedure”,detailing the procedure for search and seizure has been developedby the Ministry of Health and Family Welfare. Further, regulartraining of Appropriate Authorities is being carried out at boththe National and State level. All the States have also been directedto develop online MIS for monitoring the implementation of theAct. It is settled proposition that when offence is found to becommitted, there can be seizure and sealing of the premises andequipment during trial as no license can be given to go on A

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Acommitting the offence. Such provisions of seizure/sealing,pending trial are to be found invariably in various penallegislations. The impugned provisions contained in the Actconstitute reasonable restrictions to carry on any profession whichcannot be said to be violative of Right to Equality enshrined underArticle 14 or right to practise any profession under ArticleB19(1)(g). Considering the Fundamental Duties under Article51A(e) and considering that female foeticide is most inhumaneact and results in reduction in sex ratio, such provisions cannotbe said to be illegal and arbitrary in any manner besides thereare various safeguards provided in the Act to prevent arbitraryCactions. [Para 90] [92-A-E]

8. Non maintenance of record is spring board for commissionof offence of foeticide, not just a clerical error. In order toeffectively implement the various provisions of the Act, thedetailed forms in which records have to be maintained have beenDprovided for by the Rules. These Rules are necessary for theimplementation of the Act and improper maintenance of suchrecord amounts to violation of provisions of Sections 5 and 6 ofthe 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 attractcancellation or suspension of registration of Genetic CounsellingECentre, Genetic Laboratory or Genetic Clinic, by the AppropriateAuthority as provided under Section 20 of the Act. [Para 92][92-H; 93-A-B]

9. There is no substance in the submission that provisionof Section 4(3) be read down. By virtue of the proviso to SectionF4(3), a person conducting ultrasonography on a pregnant woman,is required to keep complete record of the same in the prescribedmanner and any deficiency or inaccuracy in the same amounts tocontravention of Section 5 or Section 6 of the Act, unless thecontrary is proved by the person conducting the saidGultrasonography. The aforementioned proviso to Section 4(3)reflects the importance of records in such cases, as they are oftenthe only source to ensure that an establishment is not engagedin sex-determination. [Para 93] [93-C-D]

10. In light of the nature of offences which necessitated theHenactment 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. Section 23 of the Act, whichprovides for penalties of offences, acts in aid of the other Sectionsof the Act is quite reasonable. It provides for punishment for anymedical geneticist, gynecologist, registered medical practitioneror a person who owns a Genetic Counselling Centre, a GeneticClinic or a Genetic Laboratory, and renders his professional ortechnical services to or at said place, whether on honorariumbasis or otherwise and contravenes any provisions of the Act, orthe Rules under it. [Paras 91 and 94] [92-F; 93-E]

11. Therefore, dilution of the provisions of the Act or theRules would only defeat the purpose of the Act to prevent femalefoeticide, and relegate the right to life of the girl child under Article21 of the Constitution, to a mere formality. [Para 95] [93-F]

Shreya Singhal v. Union of India, (2015) 5 SCC 1 :[2015] 5 SCR 963 ; R. Sai Bharathi v. J. Jayalalitha,(2004) 2 SCC 9 : [2003] 6 Suppl. SCR 85 ; Centre forEnquiry into Health and Allied Themes (CEHAT) v.Union of India, (2001) 5 SCC 577 : [2001] 3 SCR534 ; Voluntary Health Association of Punjab v. Unionof India, (2013) 4 SCC 1 : [2013] 5 SCR 111 ; NamitSharma v. Union of India (2013) 1 SCC 745 : [2013]13 SCR 1 ; Hamdard Dawakhana v. The Union of IndiaAIR 1960 SC 554 : [1960] SCR 671 ; SubramanianSwamy v. Union of India, (2016) 7 SCC 221 : [2016] 3SCR 865 – relied on.

Suo Motu v. State of Gujarat, (2009) 1 Gujarat LawReporter 64 ; Raj Bokaria v. Medical Council of India(W.P. (C) No.795 of 2010 in the High Court of Delhi)– approved.

Arun Bhandari v. State of U.P. (2013) 2 SCC 801 :[2013] 3 SCR 961 ; Enquiry into Health & AlliedThemes (CEHAT) v. Union of India, (2003) 8 SCC398 : [2003] 3 Suppl. SCR 593 ; Uttar Pradesh PowerCorporation Ltd. v. Ayodhya Prasad Mishra (2008) 10SCC 139 : [2008] 13 SCR 373 ; Voluntary HealthAssociation of Punjab v. Union of India (2016) 10 SCC265 : [2016] 8 SCR 192 ; Dr. Subhash Kashinath A

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CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.129 of 2017.G

(Under Article 32 of the Constitution of India)

Soli J. Sorabjee, Shyam Divan, Sr. Advs., Amit Karkhanis, KapilJoshi, Ms. Saloni Sulakhe, Vinayak Bhandari, Ms. Palavi Sharma (forM/S. Knc), Advs. for the Petitioner.H

Ms. Pinky Anand, ASG, Biswajit Bhattacharya, Sr. Adv., Ms. VimlaSinha, Ms. Snidha Mehra, Ms. Saudamini Sharma, Gurmeet SinghMakker, Ms. Rashmi Nandakumar, Gaurav Sharma, Dhawal Mohan,Abhishek, Prateek Bhatia, Prasana Mohan, Advs. for the Respondents.

The Judgment of the Court was delivered by ARUN MISHRA, J.

1. The instant writ petition has been filed by the Federation ofObstetrics and Gynaecological Societies of India (FOGSI) (hereinafterreferred to as ‘the Society’) highlighting the issues and problems affectingthe practice of obstetricians and gynaecologists across the country underthe Pre-conception and Pre-natal Diagnostic Techniques (Prohibition ofSex Selection) Act, 1994 (hereinafter referred to as ‘the Act’) andchallenging the constitutional validity of Sections 23(1) and 23(2) of theAct and seeking direction in the nature of certiorari/mandamus fordecriminalising anomalies in paperwork/record keeping/clerical errorsin regard of 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 apexbody of obstetricians and gynaecologists of the country and is concernedfor the welfare of its members.

2. The case set up on behalf of the petitioner-Society is that theAct was enacted with the objective to prohibit pre-natal diagnostictechniques for determination of sex of the foetus leading to femalefoeticide. But unfortunately, its implementation is more in letter and lessin spirit. The problem of sex determination and gender selection is aserious issue and is one of the biggest social problems faced by oursociety. Despite enactment of the Act and subsequent amendments, theChild Sex Ratio has not shown significant improvement, hence, puttingsufficient concern and questions on the proper implementation of theAct. It is contended that equating clerical errors on the same footingwith the actual offence of sex determination shows the inherent weaknessin the language of the Act.

3. It is further contended that the Appropriate Authority appointedunder the Act conducts inspections and raids in various districts andcities and even if there are mere anomalies in the paperwork, it seals thesonography machine and files a criminal case under the Act. As a result,doctors who do not conduct sex determination and gender selection arebeing targeted on the basis of aforesaid anomalies. The inherent infirmity

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Ain the Act as it stands currently in its present form amounting to treatingunequals as equals. The Act has failed to distinguish between criminaloffences and the anomalies in paperwork like incomplete ‘F’-Forms,clerical mistakes such as writing NA or incomplete address, no mentioningof the date, objectionable pictures of Radha Krishna in sonography room,incomplete filling of Form ‘F’, indication for sonography not written,Bfaded notice board and not legible, striking out details in the Form ‘F’etc., thereby charging the members of the petitioner-Society for heinouscrime of female foeticide and sex determination and that too merely forunintentional mistakes in record keeping. The Act provides samepunishment for the contravention of any provision of the Act, thus equatingCthe anomalies in paperwork and the offence of sex determination andgender selection on the same pedestal. The sealing of machines directlydeprives a woman in that vicinity of a critical medical aid and therebyputting the lives of the women in danger. The unreasonable sealing ofthe sonography machine not only impacts the welfare of the women as such, but it also amounts to undue harassment and mental torture of theDmembers of the petitioner-Society.

4. It is further contended that the ambiguous wording of Section23(1) of the Act has resulted in grave miscarriage of justice and themembers of the petitioner-Society have faced grave hardships and haveundergone criminal prosecution for act, which cannot be equated withEthe acts of sex determination.

5. It is averred that even the smallest anomaly in paperwork whichis in fact an inadvertent and unintentional error has made the obstetriciansand gynaecologists vulnerable to the prosecution by the Authorities allover the country.F

6. Section 23(2) of the Act empowers the State Medical Councilto suspend the registration of any doctor indefinitely, who is reported bythe Appropriate Authority for necessary action, during the pendency oftrial. The petitioner-Society submitted that Section 23(2) of the Act isultra vires the Constitution as it assumes the guilt of the alleged accusedGeven before his/her conviction by a competent court and hence violatesthe fundamental right guaranteed under Article 21 of the Constitution.

7. It is contended that presumption of innocence is a cardinalprinciple of rule of law for which petitioner-Society has placed relianceon Article 14(2) of the International Covenant on Civil and Political Rights,H1966, which states that everyone charged with a criminal offence shall

have the right to be presumed innocent until proved guilty according tolaw. Article 14(2) of the International Covenant on Civil and PoliticalRights, 1966 reads thus:

“Article 14

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2. Everyone charged with a criminal offence shall have the rightto be presumed innocent until proved guilty according to law.”

8. It is contended that the Act fails to distinguish between thecases of presence and absence of mens rea during the commission ofminor clerical mistakes. Mens rea is not be presumed at the time oftaking cognizance and must be established as held by this Court in ArunBhandari v. State of U.P., (2013) 2 SCC 801.

9. The petitioner-Society has further placed reliance on thedecisions rendered by this Court in cases of penal statues to give propereffect to the scheme of the Act concerned and to balance various interestsinvolved by striking down/reading down/ diluting the concerned penalprovisions.

10. It is further contended that suspension of the medical licenceat the stage of framing of charges is highly improper and harsh, whichresults in loss of livelihood of not only the members of the Society, butalso his family as well as the dependents, who are deprived of financialsecurity and well-being. The vague and ambiguous wordings of Section23(1) renders Section 25 totally redundant.

11. It is further submitted that Form-F as it stands today does notserve the purpose for which it was made and there is no substantiveevidence which proves that errors in Form-F have any direct nexus withthe offence of sex selection and determination.

12. Respondent Nos.1 to 4 has refuted the claims of the petitioner-Society altogether. It is contended that the Act is a social welfarelegislation with a social objective to prevent elimination of girls beforebirth and it is not a general law providing any general right to practicemedicine. The specific choice of legislature cannot be called arbitraryand is in no way ultra vires or violative of the Constitution. The Act isa Central legislation; however, its implementation lies primarily with theStates, who are required to enforce the law through the statutory bodiesin the State, constituted under the Act. The Act empowers the Central

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AGovernment to regulate the use of pre-natal diagnostic techniques. Theproliferation of the technology is resulting in a catastrophe in the form offemale foeticide leading to severe imbalance in child sex ratio and sexratio at birth. The Centre is duty bound to intervene in such a case touphold the welfare of the society, especially of the women and thechildren. The Act was enacted with a purpose to ban the use of sexBselection techniques before or after conception; prevent the misuse ofpre-natal diagnostic techniques for sex selection abortions and to regulatesuch techniques. It is mandatory to maintain proper record in respect ofuse of ultrasound machines under the Act. For effective implementationof the Act, a hierarchy of Appropriate Authority at State, District andCSub-District level is created.

13. It is contended that ultrasonography test on a pregnant womanis considered to be an important part of a pre-natal diagnostic test andthe person conducting such test has to maintain a complete record thereofin the manner prescribed in the rules and a deficiency or inaccuracy inDmaintaining such records would amount to an offence. Chapter VII ofthe Act prescribes offences and penalties and there is no gradation ofoffences under the Act as it does not classify offences. Equating theclerical errors on same footing with the actual offence of sex determinationis in compliance with the provisions of the Act and rules thereunder.The Act does not differentiate among the violations committed by doctorsEand provides for punishment for all violations under the Act. The Actprescribes punishment in furtherance of its object and purposes which isto 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. It isfurther averred that right to practice a profession under Article 19(1)(g)Fof the Constitution is not an absolute right.

14. It is contended that petitioner-Society in the garb of socialcause is trying to mislead this Court and a criminal act cannot be protectedunder the umbrella of the Article 19. The offences under the Act areper se criminal and no exemption can be sought for criminal violations inGthe guise of public interest or right to freedom.

15. It is contended that the Appropriate Authority conductsinspection pursuant to the directions issued by this Court in Centre forEnquiry into Health & Allied Themes (CEHAT) v. Union of India,(2003) 8 SCC 398, wherein it was directed to constitute NationalHInspection and Monitoring Committee for conducting inspections. As

the sex determination is hatched in secrecy and committed in privacyand as both the parties are hand in glove with each other, therefore itbecomes difficult to detect the commission of the offence, hence trapsare usually laid or raids are conducted by the inspecting authorities andsometimes non-maintenance of records or incomplete records mayprovide substantial evidence towards the commission of offence. It isfurther submitted that the Act specifically provides for the record keepingunder Rule 9 of the Pre-conception and Pre-natal Diagnostic Techniques(Prohibition of Sex Selection) Rules, 1996 (hereinafter referred to as‘the Rules’) and any deficiency or inaccuracy in record keeping amountsto violation of Sections 5 and 6 of the Act.

16. The respondents contend that record keeping is important forproper implementation of the Act and the stringent provisions with regardto maintenance of records and punishment for non-compliance cannotbe equated or considered as infirmity of the Act. If it is exempted fromthe mandatory requirement, the probably involvement in sex determinationand sex selection in the guise of use of diagnostic techniques wouldcontinue unabated.

17. It is also contended that the purpose of Form ‘F’ is to maintainpersonal and medical record of the patient visiting the Pre-NatalDiagnostic Clinic to avail the services and confirmation regarding theconsent of the patient/pregnant woman with regard to the prohibition ofcommunication of the sex of foetus so as to avoid abuse of the technology.Section 4(3) of the Act requires every Genetic Counselling Centre/GeneticClinic to fill Form ‘F’. The filling of Form ‘F’ is commensurate with theobjects of the Act which is to regulate the technology and to avoid theabuse of the technology for the purpose of sex determination. It givesthe insight into the reasons for conducting ultrasonography and incompleteForm ‘F’ raises presumption of doubt against the medical practitionerand in the absence of Form ‘F’, the Appropriate Authority will have nomeans to supervise the usage of the ultrasonography machine and shallnot be able to regulate the use of the technique. The non-maintenanceof records is not merely a technical or procedural lapse in the context ofsex determination, it is the most significant piece of evidence for identifyingthe accused. It is further contended that clerical errors in Form ‘F’ fallunder Section 4 of the Act and any deficiency or inaccuracy found thereinshall amount to contravention of the provisions of Section 5 or 6 of theAct unless contrary is proved by the person conducting suchultrasonography.

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A18. It is contended that every aggrieved person, who sufferedfrom any procedural irregularity, can avail legal remedy as provided underSection 21 of the Act and Rule 19 of the Rules.

19. The respondents have placed reliance on decision renderedby High Court of Gujarat in Suo Motu v. State of Gujarat, (2009) 1BGLR 64, which dealt with the issue of proper maintenance of recordsand to the decision rendered by High Court of Rajasthan in S.K. Guptav. Union of India, wherein it was observed that female infants havealso right to live. There is right of still born child to be looked afterproperly during pregnancy. Once a child is conceived, it has to be treatedwith dignity. Such right cannot be denied and practice of female foeticide/Cinfanticide is prevailing at large which is illegal and unconstitutional.

20. The respondents have also drawn our attention to the provisionsof Regulation 1.3 of the Indian Medical Council (Professional Conduct,Etiquette and Ethics) Regulations, 2002; Regulation 6.2 of PharmacyPractice Regulation, 2015; and Transplantation of Human Organs andDTissues Act, 1994, which contains the provisions with respect tomaintenance of proper records.

21. It is submitted that Section 23 and Section 25 are complimentaryto each other, not contradictory as contended by the petitioner-Society.It is lastly contended that no case for striking down the proviso to SectionE4(3) is made out.

22. Shri Soli J. Sorabjee and Shri Shyam Divan, learned seniorcounsel urged that present is the classic example of unequals being treatedas equals. Due to inherent infirmity in the Act, whereunder members ofthe petitioner-Society are treated unequally as mere clerical errors hasFresulted in breach of personal liberties. The Act fails to classify offenceof actual sex determination vis-à-vis clerical error in maintenance ofrecord. There is no gradation of offence.

23. The presumption of innocence ought not to be disposed awaywith under the Act. The same is part of human rights. Presumption ofGinnocence continues until conviction. The provisions of suspension underSection 23(2) is draconian. Any deficiency or inaccuracy in maintenanceof records ought not to amount to contravention under Section 5 or Section6 and the proviso to Section 4(3) accordingly be diluted. It may beclarified that contravention of proviso to Section 4(3), Section 29 andRule 9 or technical lapses attracting minor penalty should not attractH

Section 27 of the Act. The provision of Section 23(2) be read down sothat suspension should not fall under Section 23(2) in the case of clericalmistakes or inadvertent technical errors/lapses. Issuance of notice bemade mandatory under Section 20. No action be taken on technicalgrounds such as writing short forms, writing ‘NA’ instead of “notapplicable”, writing initials of the doctors etc. while filing up Form ‘F’.The competent authority should consider each case on merits with theaid of legal advisor. Denial of renewal of registration of Centre of arunning unit on the ground of pendency of criminal trial is illegal andharsh. There should not be seizure of any equipment etc. as ultrasoundmachine are necessary for human use. It is not appropriate to keepsuch utilitarian instruments sealed.

24. Ms. Pinki Anand, Additional Solicitor General appearing onbehalf of respondents countering the submission raised on behalf ofpetitioner-Society contended that there is alarming decline in the childsex ratio in India and in several districts it is worse as the ratio perthousand is below 800. She has also relied upon the purpose and legislativehistory of enactment of the Act including amendments made thereunderand the Rules. It has been made mandatory to maintain proper recordsin respect of use of ultrasound machines. The Act provides for prohibitionof sex selection/determination as well as regulation of pre-natal diagnostictechniques. The rate of conviction is extremely poor, despite 24 years ofthe existence of the Act, it is only 586 out of 4202 cases registered,resulting into action against 138 medical licenses. Emphasis has beenlaid by this Court in several decisions on proper maintenance of records.Section 23 is the central provision in the scheme of the Act. Form ‘F’ isvery important as it gives the details and the reasons for conductingultrasonography and incomplete Form ‘F’ raises the presumption of doubtagainst the medical practitioner. Section 23 and Form ‘F’ are inter-linked,thus, the provisions cannot be diluted. She further contended that thenon-maintenance of records is not merely procedural lapse, it is keyevidence given the collusive nature of the crime. There exist effectiveand efficacious remedies to the instances cited by the petitioner-Society.She also relied upon a case study on record keeping as an implementationtool of Prabhakar Hospital in Panipat. The Act enjoys a presumption ofconstitutionality and no case of violation of fundamental rights has beenmade out by the petitioner-Society. The Act is regulatory and is for thewholesome purpose same advances the intendment of other provisionsapplicable to medical fraternity, which requires rigorous maintenance of

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Arecords. Considering the wide prevalence of violence against womenand children in different forms, the Legislature has enacted several Actsin order to ensure gender justice and to take care of cry of female foetus.No case for striking down, dilution or issuance of any guidelines is madeout by the petitioner-Society.

B25. It was urged on behalf of intervenor that Section 28 of the Actmakes it clear that no court shall take cognizance of an offence unlesson a complaint made by Appropriate Authority. The composition ofAppropriate Authority is provided under Section 17(3)(a), which is aHigh-Powered Body. The Supervisory Board shall review the activitiesof the Appropriate Authorities as provided under Section 16A(1)(ii). TheCSupervisory Committee consists of large body. Thus, there are adequatesafeguards to maintain check and balance provided within the Act.

26. Before we dilate upon various aspects, we take note ofprovisions of the Act. The Act was introduced by Parliament with thefollowing Statement of Objects and Reasons:D

“STATEMENT OF OBJECTS AND REASONS

It is proposed to prohibit pre-natal diagnostic techniques fordetermination of sex of the foetus leading to female foeticide.Such abuse of techniques is discriminatory against the female sexand affects the dignity and status of women. A legislation isrequired to regulate the use of such techniques and to providedeterrent punishment to stop such inhuman act.

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The Bill, inter alia, provides for:—

(i) prohibition of the misuse of pre-natal diagnostictechniques for determination of sex of foetus, leadingto female foeticide; F

(ii) prohibition of advertisement of pre-natal diagnostictechniques for detection or determination of sex;

(iii) permission and regulation of the use of pre-nataldiagnostic techniques for the purpose of detection ofspecific genetic abnormalities or disorders; G

(iv) permitting the use of such techniques only under certainconditions by the registered institutions; and

(v) punishment for violation of the provisions of theproposed legislation.

2. The Bills seeks to achieve the above objectives.”

The concern of the Legislature was that the female child is notwelcomed with open arms in most of Indian families and the diagnostictechnique is being used to commit female foeticide.

27. The female foeticide is not only the concern of India, but ofvarious countries. The United Nations General Assembly had adoptedResolution No.52/106 on 11.2.1998 expressing concern about pre-natalsex selection, female infanticide and female genital mutilation. The saidResolution also urged all States to enact and enforce legislation protectinggirls from all forms of violence, including female infanticide and prenatalsex selection. The United Nations Fourth World Conference on Womenin September, 1995 adopted the Beijing Declaration and Platform forAction. Beijing Declaration and Platform for Action identified “violenceagainst women” to “include forced sterilization and forced abortion,coercive/forced use of contraceptives, female infanticide and pre-natalsex selection”. It further urged Governments to “enact and enforcelegislation against the perpetrators of practices and acts of violence againstwomen, such as female genital mutilation, female infanticide, prenatalsex selection and dowry-related violence”. Further urged Governmentsto “Eliminate all forms of discrimination against the girl child and the rootcauses of son preference, which result in harmful and unethical practicessuch as pre-natal sex selection and female infanticide; this is oftencompounded by the increasing use of technologies to determine foetalsex, resulting in abortion of female foetuses”.

28. Beijing Declaration and Platform for Action was adopted atthe 16[th] Plenary Meeting of the Fourth World Conference on Womenheld on 15.9.1995 at Beijing. The relevant extract relating to violenceagainst women and actions to be taken is reproduced hereunder:

“115. Acts of violence against women also include forcedsterilization and forced abortion, coercive/forced use ofcontraceptives, female infanticide and prenatal sex selection.

Strategic objective L.2. Eliminate negative cultural attitudes andpractices against girls A

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[2019] 7 S.C.R.

AActions to be taken

276. By Governments:

(a) Encourage and support, as appropriate, non-governmentalorganizations and community-based organizations in their effortsto promote changes in negative attitudes and practices towardsgirls; B

(b) **

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(d) Take steps so that tradition and religion and their expressionsare not a basis for discrimination against girls.

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277. By Governments and, as appropriate, international and non-governmental organizations:

(a) **

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(c) Eliminate all forms of discrimination against the girl child andthe root causes of son preference, which result in harmful andunethical practices such as prenatal sex selection and femaleinfanticide; this is often compounded by the increasing use ofEtechnologies to determine foetal sex, resulting in abortion of femalefoetuses”

29. The 1994 Programme of Action of the InternationalConference on Population and Development (ICPD) resolved to eliminateall forms of discrimination against the girl child and the root causes ofFson preference, which result in harmful and unethical practices regardingfemale infanticide and prenatal sex selection, and also to increase publicawareness of the value of the girl child. Further urged Governments totake necessary measures to prevent infanticide, prenatal sex selection,trafficking of girl children and forcing of girls in prostitution andpornography. The International Conference on Population andGDevelopment adopted the Programme of Action of the InternationalConference on Population and Development and passed the resolutionat the 14[th] Plenary meeting held on 13.9.1994. The relevant portion ofthe aforesaid resolution is extracted hereunder:

“4.15. Since in all societies discrimination on the basis of sex oftenstarts at the earliest stages of life, greater equality for the girlchild is a necessary first step in ensuring that women realize theirfull potential and become equal partners in development. In anumber of countries, the practice of prenatal sex selection, higherrates of mortality among very young girls, and lower rates of schoolenrolment for girls as compared with boys, suggest that “sonpreference” is curtailing the access of girl children to food,education and health care. This is often compounded by theincreasing use of technologies to determine foetal sex, resulting inabortion of female foetuses. Investments made in the girl child’shealth, nutrition and education, from infancy through adolescence,are critical.

Objectives

4.16. The objectives are:

(a) To eliminate all forms of discrimination against the girl childand the root causes of son preference, which results in harmfuland unethical practices regarding female infanticide and prenatalsex selection; (b) To increase public awareness of the value of the girl child, andconcurrently, to strengthen the girl child’s self-image, self-esteemand status;

(c) To improve the welfare of the girl child, especially in regard tohealth, nutrition and education.

4.23. Governments are urged to take the necessary measures toprevent infanticide, prenatal sex selection, trafficking in girl childrenand use of girls in prostitution and pornography.”

30. The Resolution 56/139 adopted by the U.N. General Assembly,on 26.2.2002 expressed deep concern about discrimination against thegirl child, including practices such as female infanticide, incest, earlymarriage, prenatal sex selection etc. The Resolution also urged States toenact and enforce legislation to protect girls from all forms of violence,including female infanticide and prenatal sex selection, female genitalmutilation, rape, domestic violence, incest, sexual abuse, sexualexploitation, child prostitution and child pornography, and to develop age-appropriate safe and confidential programmes and medical, social and A

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Apsychological support services to assist girls who are subjected to violence.The General Assembly of United Nations adopted the following resolutionno.56/139 on 26.2.2002:

“Deeply concerned about discrimination against the girl child andthe violation of the rights of the girl child, which often result in lessBaccess for girls to education, nutrition and physical and mentalhealth care and in girls enjoying fewer of the rights, opportunitiesand benefits of childhood and adolescence than boys and oftenbeing subjected to various forms of cultural, social, sexual andeconomic exploitation and to violence and harmful practices, suchas female infanticide, incest, early marriage, prenatal sex selectionCand female genital mutilation.

10. Also urges all States to enact and enforce legislation to protectgirls from all forms of violence, including female infanticide andprenatal sex selection, female genital mutilation, rape, domesticviolence, incest, sexual abuse, sexual exploitation, child prostitutionDand child pornography, and to develop age-appropriate safe andconfidential programmes and medical, social and psychologicalsupport services to assist girls who are subjected to violence.”

31. Resolution 70/138, adopted by the U.N. General Assembly on17.12.2015, also expressed its concern at discrimination against girl childEincluding pre-natal sex selection, and urged states “to enact and enforcelegislation to protect girls from all forms of violence, discrimination,exploitation and harmful practices in all settings, including femaleinfanticide and prenatal sex selection”.

32. The General Assembly of United Nations in the 80[th] PlenaryFMeeting adopted resolution no.70/138 dated 17.12.2015 concerning thegirl child, the relevant portion of the said resolution reads thus:

“…Deeply concerned also about discrimination against the girlchild and the violation of the rights of the girl child, including girlswith disabilities, which often result in less access for girls toGeducation, and to quality education, nutrition, including foodallocation, and physical and mental health-care services, in girlsenjoying fewer of the rights, opportunities and benefits of childhoodand adolescence than boys, and in leaving them more vulnerablethan boys to the consequences of unprotected and prematuresexual relations and often being subjected to various forms ofH

cultural, social, sexual and economic exploitation and violence,abuse, rape, incest, honour-related crimes and harmful practices,such as female infanticide, child, early and forced marriage,prenatal sex selection and female genital mutilation.

20. Urges all States to enact and enforce legislation to protectgirls from all forms of violence, discrimination, exploitation andharmful practices in all settings, including female infanticide andprenatal sex selection, female genital mutilation, rape, domesticviolence, incest, sexual abuse, sexual exploitation, child prostitutionand child pornography, trafficking and forced migration, forcedlabour and child, early and forced marriage, and to develop age-appropriate, safe, confidential and disability-accessibleprogrammes and medical, social and psychological support servicesto assist girls who are subjected to violence and discrimination.

29. Calls upon Governments, civil society, including the media, andnon-governmental organizations to promote human rights educationand full respect for and the enjoyment of the human rights of thegirl child, inter alia, through the translation, production anddissemination of age-appropriate and gender-sensitive informationmaterial on those rights to all sectors of society, in particular tochildren.

30. Requests the Secretary-General, as Chair of the United NationsSystem Chief Executives Board for Coordination, to ensure thatall organizations and bodies of the United Nations system,individually and collectively, in particular the United NationsChildren’s Fund, the United Nations Educational, Scientific andCultural Organization, the World Food Programme, the UnitedNations Population Fund, the United Nations Entity for GenderEquality and the Empowerment of Women (UN-Women), theWorld Health Organization, the Joint United Nations Programmeon HIV/AIDS, the United Nations Development Programme, theOffice of the United Nations High Commissioner for Refugeesand the International Labour Organization, take into account therights and the particular needs of the girl child in countryprogrammes of cooperation in accordance with national priorities,including through the United Nations Development AssistanceFramework.”

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A33. The General Assembly of United Nations adopted the followingresolution no.52/106 on 12.12.1997 keeping in view the discriminationagainst the girl child and violation of her rights:

“Deeply concerned about discrimination against the girl child andthe violation of the rights of the girl child, which often result in lessBaccess for girls to education, nutrition, physical and mental healthcare and in girls enjoying fewer of the rights, opportunities andbenefits of childhood and adolescence than boys and often beingsubjected to various forms of cultural, social, sexual and economicexploitation and to violence and harmful practices such as incest,early marriage, female infanticide, prenatal sex selection andCfemale genital mutilation.

3. Also urges all States to enact and enforce legislation protectinggirls from all forms of violence, including female infanticide andprenatal sex selection, female genital mutilation, incest, sexualabuse, sexual exploitation, child prostitution and child pornography,Dand to develop age-appropriate safe and confidential programmesand medical, social and psychological support services to assistgirls who are subjected to violence.”

34. The concern world over as to female foeticide and infanticideis writ large from aforesaid resolution. It is worthwhile to quote theEstatistics of World Factbook, 2016 of the Central Intelligence Agency ofthe United States of America on female foeticide/infanticide across theworld, which is to the following effect:

Rank Name of the country Sex ratio at birth 1. Liechtenstein 126 males/100 females F2.China115 males/100 female3. Armenia 113 males/100 females 4. India 112 males/100 females 5.Azerbaijan111 males/100 females5. Viet Nam 111 males/100 females 6. Albania 110 males/100 females G7.Georgia108 males/100 females8. South Korea 107 males/100 females 8. Tunisia 107 males/100 females 9.Nigeria106 males/100 females10. Pakistan 105 males/100 females 11. Nepal 104 males/100 females H

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35. There is sharp decline in the sex ratio in India. In the year1901 where 972 females as against 1000 males were recorded. In 1961,it was recorded as 941; in 1971 it was 930; in 1981 it was reported 934;in 1991 it was 927; in 2001 it was 933 and in 2011 it was 943. On behalfof respondent-Union of India following State wise data has been furnished:

“Sex Ratio (Female per 1000 Male) at Birth by residence, India andbigger States, SRS 2012-14 to 2014-16

S.N.India and2012-2013-Change2013-2014-ChangeIndia906900-6900898-21.Andhra 919 918 -1 918 913 -5 Pradesh2.Assam918900-18900896-43.Bihar9079169916908-84.Chhattisgarh973961-1296196325.Delhi876869-7869857-126.Gujarat907854-53854848-67.Haryana866831-3583183218.Himachal938924-14924917-79.Jammu & 89989908999067Kashmir 10.Jharkhand910902-89029181611.Karnataka950939-11939935-412.Kerala974967-7967959-813. Madhya 927 919 -8 919 922 3 Pradesh14.Maharashtra896878-18878876-215.Orissa953950-3950948-216.Punjab87088919889893417.Rajasthan893861-32861857-418.Tamil Nadu921911-10911915419.TelanganaN.A.N.A.N.A.N.A.901N.A.20. Uttar 869 879 10 879 882 3 Pradesh 21.Uttarakhand871844-27844850622.West Bengal952951-1951937-14

The aforesaid table indicates decline in 18 States and maximumdecline of 53 points was recorded in Gujarat followed by Haryana by35 points and Rajasthan by 32 points. Sex ratio of the States in 2014-2016 indicates decline in 13 States. The maximum decline of 14 pointswas recorded in West Bengal followed by Delhi recorded at 12 points.In a publication of United Nations (UNFPA), it was published that 0.46million girls were missing at birth on an average annually during theperiod 2001-2012 as a result of sex-selective abortions. The fall in sexratios does not only have an impact on the demography of the nation,but it also gives rise to violent practices such as trafficking of womenand bride buying. The Act was conceived out of the urgency for theprohibition of sex selection practices and prohibition of the advertisementof the pre-natal diagnostic techniques for detection/determination ofsex. It came into force in the year 1996. It was amended in 2003

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Afollowing a PIL which was filed in 2000 to improve regulation oftechnology capable of sex selection. By way of amendment in the Act,the name of the Act has been changed to Pre-Conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994.The main purpose of the Act is to ban the use of sex selection andmisuse of pre-natal diagnostic technique for sex selective abortions andBto regulate such techniques. The amendments have brought techniquesof pre-conception sex selection within the ambit of the Act and havealso brought use of ultrasound machines under its umbrella. It hasfurther provided for constitution of Central and State Level SupervisoryBoard. More stringent punishments have been provided. The AppropriateCAuthorities have been given powers of civil court for search, seizureand sealing. The maintenance of record has been made mandatory inrespect of use of ultrasound machines. It has also regulated the sale ofultrasound machines only to the registered bodies. The Act providesfor prohibition of sex selection/determination and regulate pre-nataldiagnostic technology. Several important amendments were notified inDthe Rules. Rule 11(2) was amended in 2011 to provide for confiscationof the unregistered machines and Section 23(1) prescribes imprisonmentupto three years and with fine upto ten thousand rupees against theunregistered clinic/facilities and on any subsequent conviction, theimprisonment may extend to five years and with fine which may extendto fifty thousand rupees and Section 23(3) prescribes imprisonment uptoEthree years of imprisonment and with fine upto fifty thousand rupeesagainst the unregistered clinic/facilities for the first offence and for anysubsequent offence, the imprisonment may extend to five years andwith fine which may extend to one lakh rupees. Rule 3A(3) has beeninserted in 2012 to restrict the registration of medical practitionersFqualified under the Act to conduct ultrasonography in maximum of twoultrasound facilities within a district only. Number of hours during whichthe Registered Medical Practitioner would be present in each clinicwould be specified clearly to the Appropriate Authority. The amendmentmade to Rule 13 in 2012 requires every Genetic Counselling Centres,Genetic Laboratory, Genetic Clinic, Ultrasound Clinic and ImagingGCentre to intimate every change of employee, place, address andequipment installed to the Appropriate Authority 30 days in advance ofthe expected date of such change and seeks issuance of a newcertificate with the changes duly incorporated. Rules for six months’training in ultrasound for the MBBS doctors have been notified videGSR 14(E) dated 10.1.2014. The Rules include the training curriculum,Hcriteria for accreditation of institutions which will impart training and

procedure for Competency Based Evaluation Test for such trainedmedical practitioners. Revised Form ‘F’ has been notified vide GSR 77(E) date 4.2.2014. The revised format is more simplified as the detailsof invasive and non-invasive diagnostic procedures have been separatedand made more simplified.

36. There are only 586 convictions out of 4202 cases registeredeven after 24 years of existence. It reflects the challenges being facedby the Appropriate Authority in implementing this social legislation. Belowis the chart showing State wise status of implementation of the Act ason September 2018 submitted on behalf of respondents:

State wise status of implementation of the PC&PN DT Act as on SEPTE MBER,201 8S.No.States/UTs No. of No. of No. of Convictions*Med ical Number registered ongoing M achines lic enses of cases bodies Court/ seized / cancelled/ deci ded/ Police sealed suspendedclosed cases1.Andhra 3119 20 18 0 0 8 P radesh2.Arunachal 97 0 - 0 0 - P radesh3.Assam 93 0 11 4 1 0 4 4.Bihar 2761 13 2 38 6 0 32 5.Chhattis garh70 01400076.Goa17 411007.Gujarat 5994 23 5 2 18 7 99 8.Haryana 2144 31 3 5 62 85 21 15 7 9.Him achal 46 4 0 4 1 0 3 P radesh 10. Jam mu & 49 3 3 13 1 0 - K ashm ir 11.Jharkhand76 132020-12.K arnataka471149583804113.K erala17370-00-14. M ad hya 1723 50 17 4 3 9 P radesh15. M aharashtra8672 58 7 4 62 99 79 358 16.M anipur13 00-00-17.M eghalaya500-00-18.M izoram610-00-19. Nagaland 49 0 0 0 0 - 20.Odisha100166-50421.P unjab160314 [REDACTED].R ajasthan303970 15061492136823. Sikkim 27 0 0 0 0 - 24.T am il Nadu671712 3-10928325.T elang ana3547241 08302526. T ripura 48 1 - 0 0 - 27. Uttarakhand 64 7 47 12 4 0 16 28. Uttar 6031 13 9 39 20 1 10 P radesh 29.W est B engal3238242900130.A & N Island170-00-31. Chandigarh 18 3 1 - 0 0 2 32. D & N Haveli16 0 0 0 0 - 33. Dam an & 10 0 0 0 0 - Diu 34.De lhi158410 41 701035735.Lakshadeep90-00-36.P ud uc herry10 91-00-TOTAL62596 2825 2081 586 1 38 137 7 Note: *Convictions and Medical licenses data up to June 2 018

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A37. In the light of aforesaid, we examine the submission raised onbehalf of petitioner based upon clerical errors. It was urged that thelicense of members of noble charitable profession are being suspendedon account of clerical errors/mistakes in paper work under the Act andthe Rules made thereunder. On account of clerical errors in filling up ofthe forms, it would not be appropriate to inflict the punishment. In caseBof actual offence of sex determination, the provisions of the Act maygovern the field. As submission appears to be attractive and it requiresdeep scrutiny whether it is a clerical error in filling up of the forms or isfoundation of substantial breach of the provisions of the Act and Rulesframed thereunder. It was urged that Section 23 of the Act treats unequalsCas equals and there is infirmity in the Act as the clerical error in filling upof the Form ‘F’ cannot be treated at par with actual offence of sexdetermination. There is no gradation of the offence under the Act.Learned senior counsel has placed reliance on Uttar Pradesh PowerCorporation Ltd. vs. Ayodhya Prasad Mishra, (2008) 10 SCC 139,wherein this Court held that unequals cannot be treated equally. TreatingDof unequals as equals would as well offend the doctrine of equalityenshrined in Articles 14 and 16 of the Constitution. The same is extractedhereunder:

“40. It is well settled that equals cannot be treated unequally. Butit is equally well settled that unequals cannot be treated equally.ETreating of unequals as equals would as well offend the doctrineof equality enshrined in Articles 14 and 16 of the Constitution.The High Court was, therefore, right in holding that ExecutiveEngineers placed in Category I must get priority and preferencefor promotion to the post of Superintendent Engineer overFExecutive Engineers found in Category II.”

38. It is contended that merely clerical error cannot be equatedwith offences as mentioned in Sections 5 and 6 of the Act. The mainpurpose and the object of the Act is being misused and more than 60 percent cases registered under the Act, are pertaining to non-maintenanceGof record.

39. In order to appreciate whether it is clerical omission orotherwise, we have to delve on the provisions of the Act what is mandatedthereunder. Section 3 provides for regulation of Genetic CounsellingCentres, Genetic Laboratories and Genetic Clinics, Section 3A dealsHwith prohibition of sex-selection and Section 3B deals with prohibition

on sale of ultrasound machine, etc. to persons, laboratories, clinics, etc.not registered under the Act. The same are extracted hereunder:

“3. Regulation of Genetic Counselling Centres, GeneticLaboratories and Genetic Clinics.— On and from thecommencement of this Act, —

(1) no Genetic Counselling Centre, Genetic Laboratory or GeneticClinic unless registered under this Act, shall conduct or associatewith, or help in, conducting activities relating to pre-natal diagnostictechniques;

(2) no Genetic Counselling Centre or Genetic Laboratory or GeneticClinic shall employ or cause to be employed or take services ofany person whether on honorary basis or on payment who doesnot possess the qualifications as may be prescribed;

(3) no medical geneticist, gynaecologist, paediatrician, registeredmedical practitioner or any other person shall conduct or cause tobe conducted or aid in conducting by himself or through any otherperson, any pre-natal diagnostic techniques at a place other thana place registered under this Act.

3A. Prohibition of sex-selection.— No person, including aspecialist or a team of specialists in the field of infertility, shallconduct or cause to be conducted or aid in conducting by himselfor by any other person, sex selection on a woman or a man or onboth or on any tissue, embryo, conceptus, fluid or gametes derivedfrom either or both of them.

3B. Prohibition on sale of ultrasound machine, etc., topersons, laboratories, clinics, etc., not registered under theAct.—No person shall sell any ultrasound machine or imagingmachine or scanner or any other equipment capable of detectingsex of foetus to any Genetic Counselling Centre, GeneticLaboratory, Genetic Clinic or any other person not registered underthe Act.”(emphasis supplied)

40. Section 4 deals with regulation of pre-natal diagnostictechniques, which is extracted hereunder:

“4. Regulation of pre-natal diagnostic techniques. — On andfrom the commencement of this Act,—

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(1) no place including a registered Genetic Counselling Centre orGenetic Laboratory or Genetic Clinic shall be used or caused tobe used by any person for conducting pre-natal diagnostictechniques except for the purposes specified in clause (2) andafter satisfying any of the conditions specified in clause (3); -B(2) no prenatal diagnostic techniques shall be conducted exceptfor the purposes of detection of any of the following abnormalities,namely: —

(i) chromosomal abnormalities;

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-(3) no prenatal diagnostic techniques shall be used or conductedunless the person qualified to do so is satisfied for reasons to berecorded in writing that any of the following conditions are fulfilled,—namely:

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-(i) age of the pregnant woman is above thirtyfive years;(ii) the pregnant woman has undergone of two or morespontaneous abortions or foetal loss;

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(iv) the pregnant woman or her spouse has a family history ofmental retardation or physical deformities such as, spasticityor any other genetic disease; G

(v) any other condition as may be specified by the Board; Provided that the person conducting ultrasonography on apregnant woman shall keep complete record thereof in clinic insuch manner, as may be prescribed, and any deficiency orinaccuracy found therein shall amount to contravention of the H

provisions of section 5 or section 6 unless contrary is proved bythe person conducting such ultrasonography;

(4) no person including a relative or husband of the pregnant womanshall seek or encourage the conduct of any pre-natal diagnostictechniques on her except for the purposes specified in clause (2).

(5) no person including a relative or husband of a woman shallseek or encourage the conduct of any sex-selection technique onher or him or both.”

(emphasis supplied)

There is prohibition created under Section 4(1) to use any registeredGenetic Counselling Centre or Genetic Laboratory or Genetic Clinic forconducting pre-natal diagnostic techniques except for the purposesspecified in sub-section (2) of Section 4. Wrong expression has beenused as clause (2) in the Act, where it should be sub-section (2). Be thatas it may. Section 4(2) provides for conducting of pre-natal diagnostictechniques for the purpose of detection of abnormalities.

Section 4(3) provides that no pre-natal diagnostic techniques shallbe used unless the person qualified to do so is satisfied for the reasons tobe recorded in writing that prescribed conditions are fulfilled such asage of the pregnant women is above thirty-five years; the pregnant womanhas undergone two or more spontaneous abortions or foetal loss; shehad been exposed to potentially teratogenic agents such as drugs, radiation,infection or chemicals; the pregnant woman or her spouse has a familyhistory of mental retardation or physical deformities as prescribed therein;or any other condition as may be specified by the Board.

In the absence of aforesaid fulfilment of the aforesaid conditionsprovided in Section 4(3) and in the absence of abnormality as providedin Section 4(2), no such test can be performed. Proviso to Section 4(3)makes it mandatory that person conducting ultrasonography on a pregnantwoman shall keep complete record as may be prescribed and anydeficiency or inaccuracy found therein shall amount to contravention ofthe provisions of Section 5 or Section 6 unless contrary is proved by theperson conducting such ultrasonography. Section 5 provides for writtenconsent of pregnant woman and prohibition of communicating the sex offoetus, whereas Section 6 provides that determination of sex is prohibited.Sections 5 and 6 are extracted below:

A

B

CD

E

F

G

H

A“5. Written consent of pregnant woman and prohibition ofcommunicating the sex of foetus.—

(1) No person referred to in clause (2) of section 3 shall conductthe pre-natal diagnostic procedures unless—

(a) he has explained all known side and after effectsof suchprocedures to the pregnant woman concerned; B

(b) he has obtained in the prescribed formher written consentto undergo such procedures in the language which sheunderstands; and

(c) a copy of her written consent obtained under clause (b) isgiven to the pregnant woman.

C

(2) Noperson including the person conducting pre-natal diagnosticprocedures shall communicateto the pregnant woman concernedor her relatives or any other person the sex of the foetus by words,signs, or in any other manner.

D

6. Determination of sex prohibited.— On and from thecommencement of this Act, —

(a) noGenetic Counselling Centre or Genetic Laboratory orGenetic Clinic shall conduct or cause to be conducted in its Centre,Laboratory or Clinic, pre-natal diagnostic techniques includingultrasonography, for the purpose of determining the sex of a foetus; E

(b) no person shall conduct or cause to be conducted any pre-natal diagnostic techniques including ultrasonography for thepurpose of determining the sex of a foetus.

F

(c) no person shall, by whatever means, cause or allow to becaused selection of sex before or after conception.”

(emphasis supplied)

41. Independently, specific provisions have been made barringGuse of technology i.e., pre-natal diagnostic techniques for determinationof sex of foetus under Section 6 of the Act. The use of technology canonly be for the purposes as provided in Section 4(2) and with the pre-conditions as provided in Section 4(3).

42. As a safeguard to arbitrary use of powers by concernedauthorities the constitution of State Supervisory Board and Union Territory H

Supervisory Board is provided in Section 16A, which is a large bodyconsisting of various representatives. It has to create public awareness,review the activities of the Appropriate Authorities and to monitor theimplementation of the provisions of the Act and to send the periodicalreport. Relevant portion of Section 16A of the Act reads thus:

“16A. Constitution of State Supervisory Board and Unionterritory Supervisory Board.—

(1) Each State and Union territory having Legislature shall constitutea Board to be known as the State Supervisory Board or the Unionterritory Supervisory Board, as the case may be, which shall havethe following functions:—

(i) to create public awareness against the practice of pre-conception sex selection and pre-natal determination of sex offoetus leading to female foeticide in the State;

(ii) to review the activities of the Appropriate Authoritiesfunctioning in the State and recommend appropriate actionagainst them;

(iii) to monitor the implementation of provisions of the Act andthe rules and make suitable recommendations relating thereto,to the Board;

(iv) to send such consolidated reports as may be prescribed inrespect of the various activities undertaken in the State underthe Act to the Board and the Central Government; and

(v) any other functions as may be prescribed under the Act.

(2) The State Board shall consist of,—

(a) the Minister in charge of Health and Family Welfare in theState, who shall be the Chairperson, ex-officio; (b) Secretary in charge of the Department of Health and FamilyWelfare who shall be the Vice-Chairperson, ex-officio;

(c) Secretaries or Commissioners in charge of Departmentsof Women and Child Development, Social Welfare, Law andIndian System of Medicines and Homoeopathy, ex-officio, ortheir representatives;

A

B

C

D

E

F

G

H

A

(d) Director of Health and Family Welfare or Indian Systemof Medicines and Homoeopathy of the State Government,ex-officio; (e) three women members of Legislative Assembly orLegislative Council; B

(f) ten members to be appointed by the State Government outof which two each shall be from the following categories:—

(i) eminent social scientists and legal experts;

(ii) eminent women activists from non-governmentalorganizations or otherwise; C

(iii) eminent gynaecologists and obstetricians or experts ofstri-roga or prasuti-tantra;

(iv) eminent paediatricians or medical geneticists;

(v) eminent radiologists or sonologists; D

(g) an officer not below the rank of Joint Director in charge ofFamily Welfare, who shall be the Member Secretary,ex-officio.

(3) The State Board shall meet at least once in four months.”

E

43. The constitution of Appropriate Authority and AdvisoryCommittee is provided in Section 17. It consists of an officer of orabove the rank of the Joint Director of Health and Family Welfare asChairperson, an eminent woman representing women’s organization andan officer of Law Department of the State or the Union Territory asFmembers as the case may be. The functions of the Appropriate Authorityare prescribed in Section 17(4). It empowers the Appropriate Authorityto grant, suspend or cancel the registration, enforce standards, investigatecomplaints and to do other acts as provided therein. Constitution ofAdvisory Committee is also provided under Section 17(6), to aid andadvise the Appropriate Authority, consisting of three medical expertsGfrom amongst gynaecologists, obstetricians, paediatricians and medicalgeneticists, one legal expert, an officer as provided thereunder, and threeeminent social workers. No person who has been associated with theuse or promotion of pre-natal diagnostic techniques for determination ofsex or sex selection can be member of the Advisory Committee. Section17 is extracted hereunder:

H

“17. Appropriate Authority and Advisory Committee.—

(1) The Central Government shall appoint, by notification in theOfficial Gazette, one or more Appropriate Authorities for each ofthe Union territories for the purposes of this Act.

(2) The State Government shall appoint, by notification in theOfficial Gazette, one or more Appropriate Authorities for the wholeor part of the State for the purposes of this Act having regard tothe intensity of the problem of pre-natal sex determination leadingto female foeticide.

(3) The officers appointed as Appropriate Authorities under sub-section (1) or sub-section (2) shall be,—

(a) when appointed for the whole of the State or the Unionterritory, consisting of the following three members:—

(i) an officer of or above the rank of the Joint Director ofHealth and Family Welfare—Chairperson;

(ii) an eminent woman representing women’s organization;and

(iii) an officer of Law Department of the State or the Unionterritory concerned:

Provided that it shall be the duty of the State or the Unionterritory concerned to constitute multi-member State or Unionterritory level Appropriate Authority within three months ofthe coming into force of the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Amendment Act, 2002:

Provided further that any vacancy occurring therein shall befilled within three months of the occurrence.

(b) when appointed for any part of the State or the Unionterritory, of such other rank as the State Government or theCentral Government, as the case may be, may deem fit.

(4) The Appropriate Authority shall have the following functions,namely:—

(a) to grant, suspend or cancel registration of a GeneticCounselling Centre, Genetic Laboratory or Genetic Clinic; A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

(b) to enforce standards prescribed for the Genetic CounsellingCentre, Genetic Laboratory and Genetic Clinic;

(c) to investigate complaints of breach of the provisions of thisAct or the rules made thereunder and take immediate action; (d) to seek and consider the advice of the Advisory Committee,constituted under sub-section (5), on application for registrationand on complaints for suspension or cancellation of registration;

(e) to take appropriate legal action against the use of any sexselection technique by any person at any place, suo motu orbrought to its notice and also to initiate independentinvestigations in such matter; (f) to create public awareness against the practice of sexselection or pre-natal determination of sex; (g) to supervise the implementation of the provisions of theAct and rules; (h) to recommend to the Board and State Boards modificationsrequired in the rules in accordance with changes in technologyor social conditions;

(i) to take action on the recommendations of the AdvisoryCommittee made after investigation of complaint for suspensionor cancellation of registration.

(5) The Central Government or the State Government, as thecase may be, shall constitute an Advisory Committee for eachAppropriate Authority to aid and advise the Appropriate Authorityin the discharge of its functions, and shall appoint one of themembers of the Advisory Committee to be its Chairman.

(6) The Advisory Committee shall consist of—

(a) three medical experts from amongst gynaecologists,obstericians, paediatricians and medical geneticists; (b) one legal expert;

(c) one officer to represent the department dealing withinformation and publicity of the State Government or the Unionterritory, as the case may be;

(d) three eminent social workers of whom not less than oneshall be from amongst representatives of women’sorganisations.

(7) No person who has been associated with the use or promotionof pre-natal diagnostic techniques for determination of sex or sexselection shall be appointed as a member of the AdvisoryCommittee.

(8) The Advisory Committee may meet as and when it thinks fitor on the request of the Appropriate Authority for considerationof any application for registration or any complaint for suspensionor cancellation of registration and to give advice thereon:

Provided that the period intervening between any two meetingsshall not exceed the prescribed period.

(9) The terms and conditions subject to which a person may beappointed to the Advisory Committee and the procedure to befollowed by such Committee in the discharge of its functions shallbe such as may be prescribed.”

44. Section 17A empowers Appropriate Authority to summon anyperson who is in possession of any information relating to violation of theprovisions of the Act and production of documents, issue search warrantetc. It is mandatory that such Genetic Counselling Centres, Laboratoriesor Clinics should be registered under Section 18 of the Act.

45. Section 20 deals with cancellation or suspension of registration.An action can be taken as provided under Section 20(2) after givingreasonable opportunity of being heard. In case there is breach ofprovisions of the Act or the Rules, and the same is without prejudice toany criminal action that it may take against such Centres, Laboratory orClinic, the Appropriate Authority in public interest for reasons to berecorded in writing, can suspend the registration of any GeneticCounselling Centres, Laboratories or Clinics under Section 20(3) of theAct without issuing any notice referred to in sub-section (1) of Section20. The provisions of appeal against the order of suspension orcancellation of registration passed by Appropriate Authority has beenprovided in Section 21. Sections 20 and 21 are extracted hereunder:

“20. Cancellation or suspension of registration.— (1). TheAppropriate Authority may suo moto, or on complaint, issue a

A

B

C

D

E

F

G

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A

noticeto the Genetic Counselling Centre, Genetic Laboratory orGenetic Clinic to show causewhy its registration should not besuspended or cancelled for the reasons mentioned in the notice.

(2) If, after giving a reasonable opportunity of being heardto theGenetic Counselling Centre, Genetic Laboratory or Genetic Clinicand having regard to the advice of the Advisory Committee, theAppropriate Authority is satisfied that there has been a breach ofthe provisions of this Act or the rules, it may, without prejudice toany criminal action that it may take against such Centre,Laboratory or Clinic, suspend its registration for such period as itmay think fit or cancel its registration, as the case may be.

B

C

(3) Notwithstanding anything contained in sub-sections (1) and(2), if the Appropriate Authority is of the opinion that it is necessaryor expedient so to do in the public interest, it may, for reasons tobe recorded in writing, suspend the registration of any GeneticCounselling Centre, Genetic Laboratory or Genetic Clinic withoutissuing any such notice referred to in sub-section (1).

D

21. Appeal.— The Genetic Counselling Centre, GeneticLaboratory or Genetic Clinic may, within thirty days from the dateof receipt of the order of suspension or cancellation of registrationpassed by the Appropriate Authority under section 20, prefer anEappeal against such order to—

(i) the Central Government, where the appeal is against theorder of the Central Appropriate Authority; and

(ii) the State Government, where the appeal is against the orderof the State Appropriate Authority, F

in the prescribed manner.”

(emphasis supplied)

46. Section 22 deals with prohibition of advertisement relating topre-conception and pre-natal determination of sex and punishment forGcontravention.

47. Section 23 deals with offences and penalties. Section 23(1)provides for contravention of any provisions of the Act or Rules madethereunder, punishment with imprisonment for a term which may extendto three years and with fine which may extend to ten thousand rupees.

H

Section 23(2) contains provision with respect to reporting of name of theregistered medical practitioner by the Appropriate Authority to the StateMedical Council concerned for passing appropriate order includingsuspension of the registration, if the charges are framed by the Courtand till the case is disposed of and on conviction for removal of his namefrom the register of the Council for a period of five years for the firstoffence and permanently for the subsequent offence. Any person whoseek aid of any Genetic Counselling Centre, Laboratory, Clinic orultrasound clinic or imaging clinic etc. for sex selection, shall be punishablewith imprisonment which may extend to three years and with fine whichmay extend to fifty thousand rupees for the first offence and for anysubsequent offence with imprisonment which may extend to five yearsand with fine which may extend to one lakh rupees. If a woman iscompelled by her husband or any other relative to undergo pre-nataldiagnostic technique for the purpose of Section 4(2), such person shallbe liable for abetment of offence under Section 23(3). Sections 23 and24 are extracted hereunder:

“23. Offences and penalties.— (1) Any medical geneticist,gynaecologist, registered medical practitioner or any person whoowns a Genetic Counselling Centre, a Genetic Laboratory or aGenetic Clinic or is employed in such a Centre, Laboratory orClinic and renders his professional or technical services to or atsuch a Centre, Laboratory or Clinic, whether on an honorary basisor otherwise, and who contravenes any of the provisions of thisAct or rulesmade thereunder shall be punishable withimprisonment for a term which may extend to three years andwith fine which may extend to ten thousand rupeesand on anysubsequent conviction, with imprisonment which may extend tofive years and with fine which may extend to fifty thousand rupees.

(2) The name of the registered medical practitioner shall bereported by the Appropriate Authority to the State Medical Councilconcerned for taking necessary action including suspension ofthe registration if the charges are framed by the courtand till thecase is disposed of and on conviction for removal of his namefrom the register of the Council for a period of five years for thefirst offence and permanently for the subsequent offence.

(3) Any person who seeks the aidof any Genetic CounsellingCentre, Genetic Laboratory, Genetic Clinic or ultrasound clinic or A

B

C

D

E

F

G

H

A

Aimaging clinic or of a medical geneticist, gynaecologist, sonologistor imaging specialist or registered medical practitioner or any otherperson for sex selection or for conducting pre-natal diagnostictechniques on any pregnant women for the purposes other than-those specified in subsection (2) of section 4, he shall be punishablewith imprisonment for a term which may extend to three yearsBand with fine which may extend to fifty thousand rupeesfor thefirst offence and for any subsequent offence with imprisonmentwhich may extend to five years and with fine which may extendto one lakh rupees.

(4) For the removal of doubts, it is hereby provided, that theCprovisions of sub-section (3) shall not apply to the woman whowas compelled to undergo such diagnostic techniques or suchselection.

24. Presumption in the case of conduct of pre-nataldiagnostic techniques.—Notwithstanding anything contained inDthe Indian Evidence Act, 1872 (1 of 1872), the court shall presumeunless the contrary is proved that the pregnant woman wascompelled by her husband or any other relative, as the case maybe, to undergo pre-natal diagnostic technique for the purposesother than those specified in sub-section (2) of section 4 and suchEperson shall be liable for abetment of offence under sub-section(3) of section 23 and shall be punishable for the offence specifiedunder that section.”

(emphasis supplied)

48. Section 25 of the Act deals with the penalty for contraventionFof the provisions of the Act or rules for which no specific punishment isprovided. Any contravention under this Section shall be punishable withimprisonment for a term which may extend to three months or with finewhich may extend to one thousand rupees or both and in case ofcontinuing contravention with an additional fine which may extend toGfive hundred rupees for every day.

49. Section 27 makes offence to be cognizable, non-bailable andnon-compoundable. Section 27 is extracted hereunder:

“27. Offence to be cognizable, non-bailable and non-compoundable.-Every offence under this Act shall be cognizable,Hnon-bailable and non-compoundable.”

50. The mode of taking cognizance of offence is provided inSection 28 on a complaint made by the Appropriate Authority or anyofficer authorised in this behalf; or by a person who has given notice ofnot less than fifteen days to the Appropriate Authority of the allegedoffence and of his intention to make a complaint to the court. TheMetropolitan Magistrate or a Judicial Magistrate is competent to try anyoffence punishable under this Act. Maintenance of records is providedin Section 29 and that has to be preserved for two years. In case anycriminal or other proceedings are instituted against any GeneticCounselling Centre, Laboratory or Clinic, the records shall be preservedtill the final disposal of such proceedings. Section 30 empowersAppropriate Authority to search and seize records etc. Section 31provides for protection of action taken in good faith.

51. Section 32 empowers the Central Government to make rulesfor carrying out the provisions of the Act. Section 33 gives power to theBoard to make regulations with the previous sanction of the CentralGovernment. Rules and regulations are required to be laid before theParliament as provided in Section 34.

52. Rule 9 of the Rules provides for maintenance and preservationof records. The same is extracted hereunder:

9. Maintenance and preservation of records.—

(1) Every Genetic Counselling Centre, Genetic Laboratory andGenetic Clinic including a mobile Genetic Clinic, Ultrasound Clinicand Imaging Centre shall maintain a register showing, in serialorder, the names and addresses of the men or women given geneticcounselling, subjected to pre-natal diagnostic procedures or pre-natal diagnostic tests, the names of their spouse or father and thedate on which they first reported for such counselling, procedureor test.

(2) The record to be maintained by every Genetic CounsellingCentre, in respect of each woman counselled shall be as specifiedin Form D.

(3) The record to be maintained by every Genetic Laboratory, inrespect of each man or woman subjected to any pre-nataldiagnostic procedure/technique/test, shall be as specified in FormE.

AB

C

D

E

F

G

H

A

(4) The record to be maintained by every Genetic Clinic includinga mobile Genetic Clinic, in respect of each man or woman subjectedto any pre-natal diagnostic procedure/technique/test, shall be asspecified in Form F.

(5) The Appropriate Authority shall maintain a permanent recordBof applications for grant or renewal of certificate of registrationas specified in Form H. Letters of intimation of every change ofemployee, place, address and equipment installed shall also bepreserved as permanent records.

(6) All case related-records, forms of consent, laboratory results,Cmicroscopic pictures, sonographic plates or slides,recommendations and letters shall be preserved by the GeneticCounselling Centre, Genetic Laboratory or Genetic Clinic,Ultrasound Clinic or Imaging Centre for a period of two yearsfrom the date of completion of counselling, pre-natal diagnosticprocedure or pre-natal diagnostic test, as the case may be. In theDevent of any legal proceedings, the records shall be preserved tillthe final disposal of legal proceedings, or till the expiry of the saidperiod of two years, whichever is later.

(7) In case the Genetic Counselling Centre or Genetic Laboratoryor Genetic Clinic or Ultrasound Clinic or Imaging Centre maintainsErecords on computer or other electronic equipment, a printed copyof the record shall be taken and preserved after authentication bya person responsible for such record.

(8) Every Genetic Counselling Centre, Genetic Laboratory, GeneticClinic, Ultrasound Clinic and Imaging Centre shall send a completeFreport in respect of all pre-conception or pregnancy relatedprocedures/techniques/tests conducted by them in respect of eachmonth by 5[th] day of the following month to the concernedAppropriate Authority.”

Rule 9 makes it mandatory to maintain a register showing in serialGorder the names and addresses of the men or women given geneticcounselling, subjected to pre-natal diagnostic procedures or pre-nataldiagnostic tests, the name of their spouse or father and the date onwhich they first reported for such counselling. Rule 9(2) states thatrecord to be maintained uniformly. Rule 9(4) provides that record to be H

maintained by every Genetic Clinic in respect of each man or womansubjected to any pre-natal diagnostic procedure/technique/test, shall bespecified in Form ‘F’. Rule 10 deals with conditions for conducting pre-natal diagnostic procedures. Rule 10(1A) provides that it is mandatoryfor every person conducting ultrasonography to declare that he/she hasneither detected nor disclosed the sex of foetus of the pregnant womanto anybody. The pregnant woman shall declare before undergoing thetest that she does not want to know the sex of her foetus. Rule 19provides for an appeal against the decision of Appropriate Authority.Form ‘F’, which is the bone of contention of the learned counsel for theparties, is extracted hereunder:

“FORM F

FORM FOR MAINTENANCE OF RECORD IN RESPECTOF PREGNANT WOMAN BY GENETIC CLINIC/ULTRASOUND CLINIC/IMAGING CENTRE

1. Name and address of the Genetic Clinic/Ultrasound Clinic/Imaging Centre.

2. Registration No.

3. Patient’s name and her age

4. Number of children with sex of each child

5. Husband’s/Father’s name

6. Full address with Tel. No., if any

7. Referred by (full name and address of Doctor(s) / GeneticCounselling Centre (referral note to be preserved carefullywith case papers)/self referral

8. Last menstrual period/weeks of pregnancy

9. History of genetic/medical disease in the family (specify)

Basis of diagnosis

(a) Clinical

(b) Bio-chemical

(c) Cytogenetic

(d) Other (e.g. radiological, ultrasonography etc. specify)

A

B

C

D

E

F

G

[2019] 7 S.C.R.

A

10. Indication for pre-natal diagnosis

A. Previous child/children with:

(i) Chromosomal disorders

(ii) Metabolic disorders

B

(iii) Congenital anomaly

(iv) Mental retardation

(v) Haemoglobinopathy

(vi) Sex linked disorders

C

(vii) Single gene disorder

(viii) Any other (specify)

B. Advanced maternal age (35 years)

C. Mother/father/sibling has genetic disease (specify)

D

D. Other (specify)

11. Procedures carried out (with name and registration No. ofGynaecologist/ Radiologist/ Registered Medical Practitioner)who performed it.

ENon-Invasive

(i) Ultrasound (specify purpose for which ultrasound is todone during pregnancy)

[List of indications for ultrasonography of pregnant womenare given in the note below]

F

Invasive

(ii) Amniocentesis

(iii) Chorionic Villi aspiration

(iv) Foetal biopsy

G

(v) Cordocentesis

(vi) Any other (specify)

12. Any complication of procedure – please specify H

13. Laboratory tests recommended

(i) Chromosomal studies

(ii) Biochemical studies

(iii) Molecular studies

(iv) Preimplantation genetic diagnosis

14. Result of

(a) pre-natal diagnostic procedure (give details)

(b) Ultrasonography Normal/Abnormal (specify abnormalitydetected, if any).

15. Date(s) on which procedures carried out.

16. Date on which consent obtained. (In case of invasive)

17. The result of pre-natal diagnostic procedure were conveyedto ……….on ……………

18. 18. Was MTP advised/conducted?

19. Date on which MTP carried out

Date …………… Name, Signature and Registration numberPlace…………….. of the Gynaecologist/Radiologist/Director of the Clinic DECLARATION OF PREGNANT WOMAN

I, Ms…………………..(name of the pregnant woman) declarethat by undergoing ultrasonography /image scanning etc. I do notwant to know the sex of my foetus.

Signature/Thump impression of pregnant woman DECLARATON OF DOCTOR/PERSON CONDUCTINGULTRASONOGRAPHY/IMAGE SCANNING

I,……………………(name of the person conductingultrasonography/image scanning) declare that while conductingultrasonography/image scanning on Ms…………………..(nameof the pregnant woman), I have neither detected nor disclosedthe sex of her foetus to any body in any manner.

A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

Name and signature of the person conductingultrasonography/image scanning/Director or owner ofgenetic clinic/ultrasound clinic/imaging centre.

Important Notes:—

(i) Ultrasound is not indicated/advised/performed to determinethe sex of foetus except for diagnosis of sex-linked diseases suchas Duchenne Muscular Dystrophy, Haemophilia A & B, etc.

(ii) During pregnancy Ultrasonography should only be performedwhen indicated. The following is the representative list ofindications for ultrasound during pregnancy.

(1) To diagnose intra-uterine and/or ectopic pregnancy and confirmviability.

(2) Estimation of gestational age (dating).

(3) Detection of number of foetuses and their chorionicity.

(4) Suspected pregnancy with IUCD in-situ or suspected pregnancyfollowing contraceptive failure/MTP failure.

(5) Vaginal bleeding / leaking.

(6) Follow-up of cases of abortion.

(7) Assessment of cervical canal and diameter of internal os.

(8) Discrepancy between uterine size and period of amenorrhoea.

(9) Any suspected adenexal or uterine pathology / abnormality.

(10) Detection of chromosomal abnormalities, foetal structuraldefects and other abnormalities and their follow-up.

(11) To evaluate foetal presentation and position.

(12) Assessment of liquor amnii.

(13) Preterm labour / preterm premature rupture of membranes.

(14) Evaluation of placental position, thickness, grading andabnormalities (placenta praevia, retroplacental haemorrhage,abnormal adherence etc.).

(15) Evaluation of umbilical cord – presentation, insertion, nuchalencirclement, number of vessels and presence of true knot.

(16) Evaluation of previous Caesarean Section scars.

(17) Evaluation of foetal growth parameters, foetal weight andfoetal well being.

(18) Colour flow mapping and duplex Doppler studies.

(19) Ultrasound guided procedures such as medical terminationof pregnancy, external cephalic version etc. and their follow-up.

(20) Adjunct to diagnostic and therapeutic invasive interventionssuch as chorionic villus sampling (CVS), amniocenteses, foetalblood sampling, foetal skin biopsy, amnioinfusion, intrauterineinfusion, placement of shunts etc.

(21) Observation of intra-partum events.

(22) Medical/surgical conditions complicating pregnancy.

(23) Research/scientific studies in recognised institutions.

Person conducting ultrasonography on a pregnant woman shallkeep complete record thereof in the clinic/centre in Form F andany deficiency or inaccuracy found therein shall amount tocontravention of provisions of section 5 or section 6 of the Act,unless contrary is proved by the person conducting suchultrasonography.”

53. The Act and Rules are not the only regulatory frameworkwhich requires the medical fraternity to keep proper record. The medicalprofession has highly specialised nature and considering the nature ofservices rendered by medical professional, proper maintenance of recordsis an integral part of the medical services. It is contended on behalf ofMedical Council of India that the Medical Council of India (MCI) underSection 33 of the Indian Medical Council Act, 1956 has framed the IndianMedical Council (Professional Conduct, Etiquette and Ethics) Regulations,2002, which also placed a burden on physicians to observe the law ofthe country. By the said Regulations, it is mandatory for every doctor tomaintain the records of the patients treated by him/her and non-maintaining of records is a misconduct. MCI Regulation 1.3 deals withmaintenance of medical records, which reads thus:

“1.3 Maintenance of medical records:

1.3.1 Every physician shall maintain the medical recordspertainingto his / her indoor patients for a period of 3 years fromthe date of A

BC

D

E

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H

A

commencement of the treatment in a standard proforma laid downby the Medical Council of India and attached as Appendix 3.

1.3.2. If any request is made for medical records either by thepatients / authorised attendant or legal authorities involved, thesame may be duly acknowledged and documents shall be issuedwithin the period of 72 hours.

B

1.3.3 A Registered medical practitioner shall maintain a Registerof Medical Certificates giving full details of certificates issued.When issuing a medical certificate he / she shall always enter theidentification marks of the patient and keep a copy of the certificate.He / She shall not omit to record the signature and/or thumb mark,address and at least one identification mark of the patient on themedical certificates or report.The medical certificate shall beprepared as in Appendix 2.

C

1.3.4 Efforts shall be made to computerize medical records forquick retrieval.”

D

(emphasis supplied)

54. Regulation 7.1 under Chapter 7 deals with misconductcommitted by a doctor by violating any provisions of the Regulations,whereas Regulation 7.2 provides that the failure to maintain the medicalErecords of indoor patient for a period of three years and refusal to providethe medical record to a patient on request within 72 hours is a misconduct.Regulation 7.6 deals with misconduct relating to sex determination andtermination of pregnancy. The relevant portion of Regulation 7 isreproduced hereunder:

F

“7. MISCONDUCT

The following acts of commission or omission on the part of aphysician shall constitute professional misconduct rendering him/her liable for disciplinary action.

7.1 Violation of the Regulations: If he/she commits any violationof these Regulations.

G

7.2 If he/she does not maintain the medical records of his/herindoor patients for a period of three years as per regulation 1.3and refuses to provide the same within 72 hours when the patient H

or his/her authorised representative makes a request for it as perthe regulation 1.3.2.

***

******

7.6 Sex Determination Tests: On no account sex determinationtest shall be undertaken with the intent to terminate the life of afemale foetus developing in her mother’s womb, unless there areother absolute indications for termination of pregnancy as specifiedin the Medical Termination of Pregnancy Act, 1971. Any act oftermination of pregnancy of normal female foetus amounting tofemale foeticide shall be regarded as professional misconduct onthe part of the physician leading to penal erasure besides renderinghim liable to criminal proceedings as per the provisions of thisAct.”

55. Regulation 8 of the MCI Regulation deals with punishmentand disciplinary action for misconduct committed by a doctor. The relevantportion of Regulation 8 reads thus:

“8. PUNISHMENT AND DISCIPLINARY ACTION

8.1 It must be clearly understood that the instances of offencesand of Professional misconduct which are given above do notconstitute and are not intended to constitute a complete list of theinfamous acts which calls for disciplinary action, and that by issuingthis notice the Medical Council of India and or State MedicalCouncils are in no way precluded from considering and dealingwith any other form of professional misconduct on the part of aregistered practitioner. Circumstances may and do arise from timeto time in relation to which there may occur questions ofprofessional misconduct which do not come within any of thesecategories. Every care should be taken that the code is not violatedin letter or spirit. In such instances as in all others, the MedicalCouncil of India and/or State Medical Councils have to considerand decide upon the facts brought before the Medical Council ofIndia and/or State Medical Councils.

8.2 It is made clear that any complaint with regard to professionalmisconduct can be brought before the appropriate Medical Councilfor Disciplinary action. Upon receipt of any complaint ofprofessional misconduct, the appropriate Medical Council would A

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Ahold an enquiry and give opportunity to the registered medicalpractitioner to be heard in person or by pleader. If the medicalpractitioner is found to be guilty of committing professionalmisconduct, the appropriate Medical Council may award suchpunishment as deemed necessary or may direct the removalaltogether or for a specified period, from the register of the nameBof the delinquent registered practitioner. Deletion from the Registershall be widely publicized in local press as well as in the publicationsof different Medical Associations/ Societies/Bodies.”

56. It is further pointed out that Pharmacy Practice Regulations,2015 also require pharmacists to maintain records. The relevant portionCof the Regulations is extracted hereunder:

“6.2 Maintenance of patient records.—

(a) Every registered pharmacist shall maintain the medical/prescription records pertaining to his / her patients for a period ofD5 years from the date of commencement of the treatment as laiddown by the Pharmacy Council of India in Appendix II.

(b) If any request is made for medical records either by the patients/authorised attendant or legal authorities involved, the same maybe duly acknowledged and documents shall be issued within theEperiod of 72 hours.

(c) Efforts shall be made to computerize medical/prescriptionrecords for quick retrieval.”

57. Reference has also been made to the provisions of theTransplantation of Human Organs and Tissues Act, 1994 and Rules,Fwhich contain provisions that are similar to the Act. Section 20 of theTransplantation of Human Organs and Tissues Act, 1994, reads thus:

“20. Punishment for contravention of any other provisionof this Act.— Whoever contravenes any provision of this Act orany rule made, or any condition of the registration granted,Gthereunder for which no punishment is separately provided in thisAct, shall be punishable with imprisonment for a term which mayextend to five years or with fine which may extend to twenty lakhrupees.”

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58. Reference has also been made to the Medical Termination ofPregnancy Act, 1971, which also places an obligation on medicalprofessional to maintain proper records.

59. When we scrutinise the Form ‘F’ with the provisions of theAct/Rules and there cannot be any dispute with respect to serial Nos.1and 2 wherein name and address of Genetic Laboratory and its registrationnumber is required to be mentioned in the Form as it is necessary tohave a registration under Section 18 of the Act. It cannot be said to bea clerical requirement. Patient name and her age at serial No.3 is alsoabsolutely necessary so as to identify a person who is undergoing thetest and before the age of 35 years, it cannot be conducted as providedunder Section 4(3)(i). The same is as per the mandatory requirement ofSection 4. Husband’s/father’s name is also necessary as per the statutorymandate for the purpose of identification of patient. Full address is alsomandatory so as to ascertain the identity who is undergoing such test.In case these information are kept vague, the violation of the Act wouldbe blatant and unchecked and offence can never be detected. Informationat serial No.8 of the Form ‘F’ requires last menstrual period/weeks ofpregnancy to be mentioned, same is also necessary to be mentioned asit has co-relation with the investigations and provisions of the Act andthe rules framed thereunder. The column in Form at serial No.9 requireshistory of genetic/medical disease in the family to be specified which isas per the mandate of Section 4(3)(iv) of the Act. Form ‘F’ at serialNo.10 requires indication for pre-natal diagnosis which is mandatory asper the provisions contained in Section 4(2) as except for the purposesas mentioned in Sections 4(2) and 4(3) no such tests/procedures can beperformed. Thus, what is mandated by the Sections and in Rule 9 hasbeen mentioned in the Form ‘F’. Procedure carried whether invasive ornon-invasive has to be obviously mentioned and in case any laboratorytests have been recommended that is to be mentioned along with theresult. The note attached to Form ‘F’ also contains the representativelist of indications when ultrasound during pregnancy can be performed.Thus, though the submission that Form ‘F’ is clerical requirement urgedby learned counsel appearing for the petitioner-Society appears at thefirst blush to be worthy examination, but on close scrutiny it is found thatin case any information in the Form is avoided, it will result in the blatantviolation of the provisions of Section 4 and may lead to result which isprohibited under Section 6. It cannot be said to be a case of clerical A

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Aerror as doctor has to fulfil pre-requisites for undertaking the procedurein case the conditions precedent for undertaking pre-natal diagnostictest is not specifically mentioned, it would be violative of provisionscontained in Section 4. The Form ‘F’ has to be prepared and signed byeither Gynaecologist/Medical Geneticist / Radiologist / Paediatrician /Director of the Clinic/Centre/Laboratory. In case the indications andBthe information are not furnished as provided in the Form ‘F’ it wouldamount that condition precedent to undertake the test/procedure is absent.There is no other barometer except Form ‘F’ to find out why the diagnostictest/procedure was performed. In case such an important informationbeside others is kept vague or missing from the Form, it would defeatCthe very purpose of the Act and the safeguards provided thereunder andit would become impossible to check violation of provisions of the Act.It is not the clerical job to fill the form, it is condition precedent forundertaking test/procedure. With all due regards to the submissionadvanced on behalf of petitioner-Society that it is a clerical job, is wholly without substance but it is a responsible job of the person who isDundertaking such a test i.e., the Gynaecologist/ Medical Geneticist/Radiologist / Paediatrician / Director of the Clinic/Centre/Laboratory tofill the requisite information. In case he keeps it vague, he knows fullywell that he is violating the provisions of the Act and undertaking the testwithout existence of the conditions precedent which are mandatory toEexist he cannot undertake test/procedure without filling such informationin the form. There is no other way to ensure that test is undertaken onfulfilment of the prescribed conditions. There is nothing else but therecord which required to be maintained and on the basis of which counter-check can be made. There is no other barometer or criteria to find outthe violation of the provisions of the Act. Rule 9(4) also requires thatFevery Genetic Clinic to fill Form ‘F’ wherein information with regard todetails of the patient, referral notes with indication and case papers ofthe patient are required to be filled and preserved. Form ‘F’ lays downthe indicative list for conducting ultrasonography during pregnancy. Form‘F’ being technical in nature gives the insight into the reasons forGconducting ultrasonography and incomplete Form ‘F’ raises thepresumption of doubt against the medical practitioner. In the absence ofForm ‘F’, Appropriate Authorities will have no tool to supervise the usageof ultrasound machine and shall not be able to regulate the use of thetechnique which is the object of the Act.

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60. It is rightly contended on behalf of respondents that there aredifferent forms for record keeping prescribed under the Act and theRules they are important and interlinked, operate in tandem with oneanother. These records have to be maintained only when the procedureor tests are conducted on pregnant woman or when patient may havebeen advised to use pre-conception diagnostic tools to conceive a child.It is required for Genetic Counselling Centre advising the procedure/testwith a potential of detecting or determining the sex of the foetus andreferring a person to a Genetic Clinic/Imaging Centre/Ultrasound Clinicto record the details of Genetic Clinic to which patient is referred atpoint 15 of the Form ‘D’ along with the details of the diagnosis andrelevant medical details of the person. Accordingly, Genetic Clinic/Imaging Centre/Ultrasound Clinic conducting the aforesaid referredprocedure has to record the name and address of Genetic CounsellingCentre with the referral slip along with the relevant medical record ofthe person on whom procedure/test/technique is conducted. The aforesaidrecord keeping procedure shall be followed by Genetic Laboratoriesalso. The scheme of the Act makes it evident that record keeping ismeant to track/monitor and regulate the use of technology that haspotential of sex selection and sex determination. Section 23 is not stand-alone Section. It is rather used in the enforcement of other provisions ofthe Act and violations of Section 23 are often accompanied by violationsof provisions of Sections 4, 5, 6 and 18 of the Act. It is submitted thatnon-maintenance of record in the context of sex determination is notmerely a technical or procedural lapse. It is most significant piece ofevidence for identifying offence and the accused. The inspection ofrecords is crucial to identify wrong-doers as the crime of sexdetermination being a collusive crime given the nexus between the patientsand the doctors. Accordingly, punishment is provided in Section 23 fornot maintaining the records.

61. Ms. Pinki Anand, learned Additional Solicitor General has reliedupon a case study on record keeping as an implementation tool ofPrabhakar Hospital in Panipat. In this case Hospital had not sent thereport of IVF done at its Centre to the Appropriate Authority despitemeeting held on 10.10.2013 and subsequent reminders. After thirteenthreminder dated 27.11.2014, a show cause notice was issued to the Hospitalon 2.2.2015. The aforesaid case study reads thus:

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“In the case of this Hospital the report of IVF done at the centrewas not sent to the Appropriate Authority despite meetings heldon 10.10.2013 and reminders sent on 6.3.2014, 14.3.2014,20.3.2014, 21.3.2014, 25.3.2014, 28.3.2014, 31.3.2014 and finallywith a thirteenth reminder on 27.11.2014.

BDuring inspection following discrepancies were found- a.In form no.9338, In-vitro Fertilization (IVF) was done onpatient with 2 female children with repeated history of4abortions.

b.In form no.9700, woman with 8 female children receivedIVF.

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c.In form no.10385, patient Santosh with 7 female childrenreceived IVF but did not fill the section C in F-Form.Section C in form F pertains to the records of the invasiveprocedures which requires records of all diagnosticprocedures done on men and women which has potentialof sex determination/selection to be recorded.

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d.Form no.10389, woman with 3 female children receivedIVF, form F Section C not filled in.

e.Form no.9338, woman had 2 female children and 6abortions, and received IVF.

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f.Form no.9700, a woman with 8 female children receivedIVF.

The hospital was asked why patients who had female childrenunderwent IVF as evident from the records. In several of thecases it is inexplicable why the samples were sent to Delhi andBombay. In many F forms many female patients with wrongphone numbers were mentioned. Similarly in other Form F, patients F

with wrong identity proofs, address proof and no identity proofswere found. In another set of form F wrong Obstetric andAbortion history was mentioned as confirmed from the patients.Difference history on referral slip and Form F was observed.Signature of patient was found to be missing in the consent formin many forms. The Signature of the witness Doctor/Counsellor G

was missing in all consent forms of IVF patients. Accordingly acomplaint has been filed in the court.”

(emphasis supplied)

62. It is submitted that the record keeping provide information onindividual patients who could have potentially undergone sex selection/determination techniques, which is an offence under this Act. If recordkeeping is diluted or exempted from the mandatory requirement of theAct, the probable involvement in sex determination and sex selection inthe guise of use of diagnostic techniques would continue unbated.

63. The way in which the non-maintenance of record can be usedfor violating the provisions of the Act, is apparent from the aforesaidexample. The aforesaid facts have been mentioned in the show causenotice that had been issued. In many Form ‘F’ female patients withwrong phone numbers were mentioned. In other Form ‘F’ patients withwrong identity, proof of address and no identity proof were found. Inanother set of Form ‘F’ wrong obstetric and abortion history wasmentioned. Signature of patient was also found missing in the consentforms. Thus, the non-filling of information cannot be termed to be clericalerror, but in case it is kept vague that itself facilitates an offence. Itwould definitely a blatant and intentional violation of the provisions ofthe Act in order to prevent the mischief which is intended to bymaintenance of record, filling up details of the forms is mandated bySections 4 and 5. The wholesome social legislation would be defeatedin case Form is not filled which is sine qua non toto undertake tests/procedures if such condition does not exist, no such procedure can beperformed and diluting the provisions would be against the gender justice.It is in order to create the equality that the provisions have been enactednot that unequals are being treated equally. The non-maintenance ofform/not reflecting correct medical condition is offence, not mentioningit would also be an offence or keeping it vague.

64. It was pointed on behalf of petitioner-Society by filing certainaffidavits of the medical practitioners raising grievances with regard tothe criminal cases filed against them by the Appropriate Authority oncertain grounds. Acquittals have also been recorded, but they are notattributable to the deficiency in the Act. The provision of the law cannotbe struck down on the ground of allegation of such exercise of power in

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Aarbitrary manner, especially when 0.46 million girls were stated to bemissing at birth as a result of sex selective abortions.

65. In Voluntary Health Association of Punjab v. Union ofIndia, (2016) 10 SCC 265, this Court observed as under:

“46. Now, we shall advert to the prayers in Writ Petition (Civil)No. 575 of 2014. The writ petition has been filed by Indian MedicalAssociation (IMA). It is contended that Sections 3-A, 4, 5, 6, 7,16, 17, 20, 23, 25, 27 and 30 of the Act and Rules 9(4), 10 & Form“F” (including foot-note), which being the subject matter of concernin the instant writ petition, are being misused and wronglyinterpreted by the authorities concerned thereby causing undueharassment to the medical professionals all over the country underthe guise of the ‘so-called implementation’. It is also urged that,implementation of steps and scrutiny of records was started atlarge scale all over the country and lot of anomalies were found inrecords maintained by doctors throughout the country. It is howeverpertinent to mention here that the majority of the defaults were oftechnical nature as they were merely minor and clerical errorscommitted occasionally and inadvertently in the filing of Form“F”. It is also put forth that the Act does not classify the offencesand owing to the liberal and vague terminology used in the Act, itis thrown open for misuse by the implementing authoritiesconcerned and has resulted into taking of cognizance of non-bailable (punishable by three years) offences against doctors evenin the cases of clerical errors, for instance non-mentioning of N.A.(Not Applicable) or leaving of any column in the Form “F”concerned as blank. It is further submitted that the said unfetteredpowers in the hands of implementing authority have resulted intoturning of this welfare legislation into a draconian novel way ofencouraging demands for bribery as well as there is no priorindependent investigation as mandated Under Section 17 of theAct by these Authorities. It is also set forth that the Act statesmerely that any contravention with any of the provisions of theAct would be an offence punishable Under Section 23(1) of thesaid Act and further all offences under the Act have been madenon-bailable and non-compoundable and the misuse of the samecan only be taken care of by ensuring that the Appropriate Authorityapplies its mind to the fact of each case/complaint and only onsatisfaction of a prima facie case, a complaint be filed rather than B

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launching prosecution mechanically in each case. With theseaverments, it has been prayed for framing appropriate guidelinesand safeguard parameters, providing for classification of offencesas well, so as to prohibit the misuse of the PCPNDT Act duringimplementation and to read down this Sections 6, 23, 27 of thePCPNDT Act. That apart, it has been prayed to add certainprovisos/exceptions to Sections 7, 17, 23 and Rule 9 of the Rules.

47. In our considered opinion, whenever there is an abuse of theprocess of the law, the individual can always avail the legal remedy.As we find, neither the validity of the Act nor the Rules has beenspecifically assailed in the writ petition. What has been prayed isto read out certain provisions and to add certain exceptions. Weare of the convinced view that the averments of the present naturewith such prayers cannot be entertained and, accordingly, wedecline to interfere.”

(emphasis supplied)

66. The emphasis of this Court is on the proper maintenance ofrecords. In Centre for Enquiry into Health and Allied Themes (CEHAT)v. Union of India, (2001) 5 SCC 577, this Court observed thus:

“3. It is apparent that to a large extent, the PNDT Act is notimplemented by the Central Government or by the StateGovernments. Hence, the petitioners are required to approachthis Court under Article 32 of the Constitution of India……Primafacie it appears that despite the PNDT Act being enacted byParliament five years back, neither the State Governments northe Central Government has taken appropriate action for itsimplementation. Hence, after considering the respectivesubmissions made at the time of hearing of this matter, as suggestedby the learned Attorney-General for India, Mr Soli J. Sorabjee,the following directions are issued on the basis of various provisionsfor the proper implementation of the PNDT Act:

II. Directions to the Central Supervisory Board (CSB)

1. ***

2. ***

3. CSB shall issue directions to all State/UT appropriate authoritiesto furnish quarterly returns to CSB giving a report on the

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Aimplementation and working of the Act. These returns should interalia contain specific information about:

(i) survey of bodies specified in Section 3 of the Act;

(ii) registration of bodies specified in Section 3 of the Act; B(iii) action taken against non-registered bodies operating in violationof Section 3 of the Act, inclusive of search and seizure of records;

(iv) complaints received by the appropriate authorities under theAct and action taken pursuant thereto;

(v) number and nature of awareness campaigns conducted andCresults flowing therefrom.….”

67. In Voluntary Health Association of Punjab v. Union ofIndia, (2013) 4 SCC 1, the Court dealt with the issue of maintenance ofrecord and issued the following directions:

“9.4. The authorities should ensure also that all genetic counsellingDcentres, genetic laboratories and genetic clinics, infertility clinics,scan centres etc. using preconception and pre-natal diagnostictechniques and procedures should maintain all records and allforms, required to be maintained under the Act and the Rules andthe duplicate copies of the same be sent to the district authoritiesEconcerned, in accordance with Rule 9(8) of the Rules.

9.6. There will be a direction to all genetic counselling centres,genetic laboratories, clinics etc. to maintain Forms A, E, H andother statutory forms provided under the Rules and if these formsare not properly maintained, appropriate action should be takenFby the authorities concerned.”

68. The High Court of Gujarat in Suo Motu v. State of Gujarat,(2009) 1 Gujarat Law Reporter 64, dealt at length with the issue ofproper maintenance of record and observed as under:

“5. A conjoint reading of the above provisions would clearly indicateGa well-knit legislative scheme for ensuring a strict and vigilantenforcement of the provisions of the Act directed against femalefoeticide and misuse of pre-natal diagnostic techniques….

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7. As seen earlier, the Act and the Rules made thereunder providefor an elaborate scheme to ensure proper implementation of therelevant legal provisions and the possible loopholes in strict andfull compliance are sought to be plugged by detailed provisionsfor maintenance and preservation of records. In order to fullyoperationalise the restrictions and injunctions contained in the Actin general and in Secs. 4, 5 and 6 in particular, to regulate the useof pre-natal diagnostic technique, to make the pregnant womanand the person conducting the pre-natal diagnostic tests andprocedures aware of the legal and other consequences and toprohibit determination of sex, the Rules prescribe the detailed formsin which records have to be maintained. Thus, the Rules are madeand forms are prescribed in aid of the Act and they are so importantfor implementation of the Act and for prosecution of the offenders,that any improper maintenance of such record is itself madeequivalent to violation of the provisions of Secs. 5 and 6, by virtueof the proviso to sub-sec. (3) of Sec. 4 of the Act. It must, however,be noted that the proviso would apply only in cases of ultra-sonography conducted on a pregnant woman. And any deficiencyor inaccuracy in the prescribed record would amount tocontravention of the provisions of Secs. 5 and 6 unless and untilcontrary is proved by the person conducting such ultra-sonography.The deeming provision is restricted to the cases of ultra-sonographyon pregnant women and the person conducting ultra-sonographyis, during the course of trial or other proceeding, entitled to provethat the provisions of Secs. 5 and 6 were, in fact, not violated.

8. It needs to be noted that improper maintenance of the recordhas also consequences other than prosecution for deemed violationof Secs. 5 or 6. Section 20 of the Act provides for cancellation orsuspension of registration of Genetic Counselling Centre, GeneticLaboratory or Genetic Clinic in case of breach of the provisionsof the Act or the Rules. Therefore, inaccuracy or deficiency inmaintaining the prescribed record shall also amount to violation ofthe prohibition imposed by Sec. 6 against the Genetic CounsellingCentre, Genetic Laboratory or Genetic Clinic and expose suchclinic to proceedings under Sec. 20 of the Act. Where, by virtueof the deeming provisions of the proviso to sub-sec. (3) of Sec. 4,contravention of the provisions of Secs. 5 or 6 is legally presumed AB

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and actions are proposed to be taken under Sec. 20, the personconducting ultra-sonography on a pregnant woman shall also haveto be given an opportunity to prove that the provisions of Secs. 5or 6 were not violated by him in conducting the procedure. Thus,the burden shifts on to the person accused of not maintaining theprescribed record, after any inaccuracy or deficiency is established,and he gets the opportunity to prove that the provisions of Secs. 5and 6 were not contravened in any respect. Although it is apparentlya heavy burden, it is legal, proper and justified in view of theimportance of the Rules regarding maintenance of record in theprescribed forms and the likely failure of the Act and its purposeif procedural requirements were flouted. The proviso to sub-sec.(3) of Sec. 4 is crystal clear about the maintenance of the recordin prescribed manner being an independent offence amounting toviolation of Secs. 5 or 6 and, therefore, the complaint need notnecessarily also allege violation of the provisions of Secs. 5 or 6of the Act. A rebuttable presumption of violation of the provisionsof Secs. 5 or 6 will arise on proof of deficiency or inaccuracy inmaintaining the record in the prescribed manner and equivalencewith those provisions would arise for punishment as well as fordisproving their violation by the accused person. That being thescheme of these provisions, it would be wholly inappropriate toquash the complaint leging inaccuracy or deficiency in maintenanceof the prescribed record only on the ground that violation of Secs.5 or 6 of the Act was not alleged or made out in the complaint. Itwould also be improper and premature to expect or allow theperson accused of inaccuracy or deficiency in maintenance ofthe relevant record to show or prove that provisions of Secs. 5 or6 were not violated by him, before the deficiency or inaccuracywere established in Court by the prosecuting agency or beforethe authority concerned in other proceedings.”

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69. The Act enjoys a presumption of constitutionality. We find noviolation of the constitutional principles. The problem of female foeticideGis worldwide and the matters of common knowledge, reports and historyare the basis of the legislation, provisions of which cannot be termed tobe illegal or arbitrary in any manner. In Namit Sharma v. Union ofIndia, (2013) 1 SCC 745, this Court has laid down as under:

“18. The principles for adjudicating the constitutionality of aprovision have been stated by this Court in its various judgments.Referring to these judgments and more particularly to Ram KrishnaDalmia v. Justice S.R. Tendolkar, AIR 1958 SC 538 and BudhanChoudhry v. State of Bihar, AIR 1955 SC 191, the author JagdishSwarup in his book Constitution of India (2nd Edn., 2006) statedthe principles to be borne in mind by the courts and detailed themas follows: (Ram Krishna Dalmia case, AIR pp. 547-48, para 11)

“(a)**

(b) that there is always a presumption in favour of theconstitutionality of an enactment and the burden is upon him whoattacks it to show that there has been a clear transgression of theconstitutional principles;

(c) that it must be presumed that the legislature understands andcorrectly appreciates the need of its own people, that its laws aredirected to problems made manifest by experience and that itsdiscriminations are based on adequate grounds; (d)**

(e) that in order to sustain the presumption of constitutionality thecourt may take into consideration matters of common knowledge,matters of common report, the history of the times and may assumeevery state of facts which can be conceived existing at the timeof legislation; and (f)**”

70. The petitioner has not shown which of the entry is notmandatory in the form. As the entries are mandatory and sine qua nonfor undertaking a test/procedure, the assertion that their fundamentalrights are being violated by not providing requisite information is notgermane and is without substance.

71. The Act intends to prevent mischief of female foeticide andthe declining sex ratio in India. When such is the objective of the Actand the Rules and mischief which it seeks to prevent, violation of therights under Part III of the Constitution is not found. This Court inHamdard Dawakhana v. The Union of India, AIR 1960 SC 554, haslaid down the following principles:

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A“8. Therefore, when the constitutionality of an enactment ischallenged on the ground of violation of any of the articles in PartIII of the Constitution, the ascertainment of its true nature andcharacter becomes necessary i.e. its subject matter, the area inwhich it is intended to operate, its purport and intent have to bedetermined. In order to do so it is legitimate to take intoBconsideration all the factors such as history of the legislation, thepurpose thereof, the surrounding circumstances and conditions,the mischief which it intended to suppress, the remedy for thedisease which the legislature resolved to cure and the true reasonfor the remedy; Bengal Immunity co. Ltd. v. State of Bihar, 1955-C2 SCR 603 at pp. 632, 633 ( (S) AIR 1955 SC 661 at p.674);R.M.D. Chamarbaughwala v. Union of India, 1957 SCR 930 at p.936: ( (S) AIR 1957 SC 628 at p.631); Mahant Moti Das v. S.P.Sahi, AIR 1959 SC 942 at p. 948.

9. Another principle which has to borne in mind in examining theDconstitutionality of a statute is that it must be assumed that thelegislature understands and appreciates the need of the peopleand the laws it enacts are directed to problems which are mademanifest by experience and that the elected representativesassembled in a legislature enact laws which they consider to bereasonable for the purpose for which they are enacted.EPresumption is, therefore, in favour of the constitutionality of anenactment. Charanjit Lal v. Union of India, 1950 SCR 869: (AIR1951 SC 41); State of Bombay v. F.N. Bulsara, 1951 SCR 682 atp. 708: (AIR 1951 SC 318 at p. 326); AIR 1959 SC 942.”

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72. The mischief sought to be remedied is grave and the effort isFbeing made to meet the challenge to prevent the birth of the girl child.Whether Society should give preference to male child is a matter ofgrave concern. The same is violative of Article 39A and ignores themandate of Article 51A(e) which casts a duty on citizens to renouncepractices derogatory to the dignity of women. When sex selection isGprohibited by virtue of provisions of Section 6, the other interwovenprovisions in the Acts to prevent the mischief obviously theirconstitutionality is to be upheld.

73. The provisions of MTP Act came up for consideration beforethe High Court of Delhi in Raj Bokaria v. Medical Council of IndiaH(W.P. (C) No.795 of 2010), it observed:

“11. On a reading of Section 5 of the MTP Act, it appears to thisCourt that the opinion formed by the medical practitioner to go foreither MTP or pre-term inducement of labour when the pregnancyis beyond 20 weeks, has necessarily to be in writing and in theprescribed format. There was no question of there not being anyrecord whatsoever of the forming of such opinion of the medicalpractitioner. The argument advanced by Ms. Acharya that in acase of emergency there may be no time for recording suchopinion cannot explain the failure to record an opinion in the presentcase. The facts narrated by the Petitioner herself show that avery conscious decision was taken of going for a pre-terminducement of labour sometime around 6th October 2003 whenthe deceased was admitted to Respondent No. 3 hospital. Evenat that time the opinion of the Petitioner should have beenrecorded. The pre-term induced delivery took place on 8th October2003. There was sufficient time, therefore, for the Petitioner torecord her opinion, mandatorily required by Section 5(1). In termsof Rule 3(1) of the Medical Termination of PregnancyRegulations, 2003 the medical practitioner has to record her opinionin Form I. The non-maintenance of records to show the basis onwhich an opinion was formed to going in for a pre-term inducementin a case where the pregnancy is beyond the 20th week is indeeda very serious lapse. There can be no excuse whatsoever for amedical practitioner seeking to defend herself with reference toSection 5 of the MTP Act not maintaining any record of theformation of the opinion in terms of Section 5(1) read with theRegulations of 2003. In the considered view of this Court, theabove factor alone is enough to demonstrate the gross negligenceon the part of the Petitioner.”

(emphasis supplied)

74. On behalf of petitioner-Society, reliance has been placedregarding mens rea on Arun Bhandari v. State of Uttar Pradesh, (2013)2 SCC 801, wherein the Court observed as under:

“22. In G.V. Rao v. L.H.V. Prasad,(2000) 3 SCC 693, this Courthas held thus: (SCC pp. 696-97, para 7)

“7. As mentioned above, Section 415 has two parts. While inthe first part, the person must ‘dishonestly’ or ‘fraudulently’induce the complainant to deliver any property; in the second A

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part, the person should intentionally induce the complainant todo or omit to do a thing. That is to say, in the first part, inducementmust be dishonest or fraudulent. In the second part, theinducement should be intentional. As observed by this Court inJaswantrai Manilal Akhaney v. State of Bombay, AIR 1956SC 575, a guilty intention is an essential ingredient of the offenceof cheating. In order, therefore, to secure conviction of a personfor the offence of cheating, ‘mens rea’ on the part of thatperson, must be established. It was also observed in MahadeoPrasad v. State of W.B., AIR 1954 SC 724, that in order toconstitute the offence of cheating, the intention to deceiveshould be in existence at the time when the inducement wasoffered.”

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No sustenance can be drawn from the aforesaid decision askeeping the information blank is definitely a violation of the Act and verybasic fundamental requisite for undertaking the test. Thus, when formDhas not been filled up, obviously the act is dishonest, fraudulent and canbe termed intentional also. Such case cannot be classified into clericalerror.

75. Reliance has also been placed on the decision of this Court inDr. Subhash Kashinath Mahajan v. State of Maharashtra, (2018) 6ESCC 454, in which this Court observed that the Court has to balance theright of liberty of the accused guaranteed under Article 21, which couldbe taken away only by just, fair and reasonable procedure and to checkabuse of power by police and injustice to a citizen. Thus, some filterswere required to be incorporated to meet the mandate of Articles 14 and21. The substantive as well as procedural laws must conform to ArticlesF14 and 21. The expression procedure established by law under Article21 implies just, fair and reasonable procedure. The court to makepurposive interpretation and consider the doctrine of proportionality. ThisCourt has observed thus:

“12. The learned Amicus submitted that under the scheme of theAtrocities Act, several offences may solely depend upon theversion of the complainant which may not be found to be true.There may not be any other tangible material. One sided version,before trial, cannot displace the presumption of innocence. Suchversion may at times be self-serving and for extraneous reason.Jeopardising liberty of a person on an untried unilateral version, G

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without any verification or tangible material, is against thefundamental rights guaranteed under the Constitution. Beforeliberty of a person is taken away, there has to be fair, reasonableand just procedure. Referring to Section 41(1)(b) CrPC it wassubmitted that arrest could be effected only if there was “credible”information and only if the police officer had “reason to believe”that the offence had been committed and that such arrest wasnecessary. Thus, the power of arrest should be exercised onlyafter complying with the safeguards intended under Sections 41and 41-A CrPC. It was submitted that the expression “reason tobelieve” in Section 41 CrPC had to be read in the light of Section26 IPC and judgments interpreting the said expression. The saidexpression was not on a par with suspicion. Reference has beenmade in this regard to Joti Parshad v. State of Haryana, 1993Supp (2) SCC 497, Badan Singh v. State of U.P., 2001 SCC OnLineAll 973, Adri Dharan Das v. State of W.B., (2005) 4 SCC 303,Tata Chemicals Ltd. v. Commr. of Customs, (2015) 11 SCC 628and Ganga Saran & Sons (P) Ltd. v. CIT, (1981) 3 SCC 143. Inthe present context, to balance the right of liberty of the accusedguaranteed under Article 21, which could be taken away only byjust, fair and reasonable procedure and to check abuse of powerby police and injustice to a citizen, exercise of right of arrest wasrequired to be suitably regulated by way of guidelines by this Courtunder Article 32 read with Article 141 of the Constitution. Somefilters were required to be incorporated to meet the mandate ofArticles 14 and 21 to strengthen the rule of law.

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31. We may, at the outset, observe that jurisdiction of this Court toissue appropriate orders or directions for enforcement offundamental rights is a basic feature of the Constitution. This Court,as the ultimate interpreter of the Constitution, has to uphold theconstitutional rights and values. Articles 14, 19 and 21 representthe foundational values which form the basis of the rule of law.Contents of the said rights have to be interpreted in a mannerwhich enables the citizens to enjoy the said rights. Right to equalityand life and liberty have to be protected against any unreasonableprocedure, even if it is enacted by the legislature. The substantiveas well as procedural laws must conform to Articles 14 and 21.

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AAny abrogation of the said rights has to be nullified by this Courtby appropriate orders or directions.Power of the legislature hasto be exercised consistent with the fundamental rights.Enforcement of a legislation has also to be consistent with thefundamental rights. Undoubtedly, this Court has jurisdiction toenforce the fundamental rights of life and liberty against anyBexecutive or legislative action. The expression “procedureestablished by law” under Article 21 implies just, fair and reasonableprocedure.

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C53. It is well settled that a statute is to be read in the context ofthe background and its object. Instead of literal interpretation, thecourt may, in the present context, prefer purposive interpretationto achieve the object of law. Doctrine of proportionality is wellknown for advancing the object of Articles 14 and 21. A proceduralpenal provision affecting liberty of citizen must be read consistentD”with the concept of fairness and reasonableness.

(emphasis supplied)

No sustenance can be drawn from aforesaid decision as theprocedure under the Act is due procedure of law with the safeguards ofEnot only of appeals under Section 21 and Rule 19, but there is a StateSupervisory Board in Section 16A. The constitution of multi-memberAppropriate Authority is provided in Section 17(3)(a) and the AdvisoryCommittee as provided in Section 17(6) which is again also a multi-member Committee. The Advisory Committee has to aid and advise theAppropriate Authority in discharge of its functions. Thus, internalFsafeguards are provided in the Act and the Rules which conform toArticles 14 and 21.

76. Reliance has also been placed on Gian Kaur v. State ofPunjab, (1996) 2 SCC 648, wherein this Court dealt with the provisionsof right to die within the ambit of Article 21. While discussing theGaforesaid, this Court has observed thus:

“43. This caution even in cases of physician-assisted suicide issufficient to indicate that assisted suicides outside that categoryhave no rational basis to claim exclusion of the fundamentalprinciples of sanctity of life.The reasons assigned for attacking a

provision which penalises attempted suicide are not available tothe abettor of suicide or attempted suicide. Abetment of suicideor attempted suicide is a distinct offence which is found enactedeven in the law of the countries where attempted suicide is notmade punishable. Section 306 IPC enacts a distinct offence whichcan survive independent of Section 309 in the IPC. The learnedAttorney General as well as both the learned amicus curiae rightlysupported the constitutional validity of Section 306 IPC.”

(emphasis supplied)

(emphasis supplied)

77. In Subramanian Swamy v. Union of India, (2016) 7 SCC221, it was observed that restriction that goes beyond the requirement ofpublic interest cannot be considered as a reasonable restriction and wouldbe arbitrary. The same reasonableness is not a static concept. Articles14 and 19 are part of Article 21. Misuse of a provision or its possibilityof abuse is no ground to declare Section 499 IPC as unconstitutional. Ifa provision of law is misused or abused, it is for the Legislature toamend, modify or repeal it.

This Court has observed thus:

“9.3. Section 499 IPC ex facie infringes free speech and it is aserious inhibition on the fundamental right conferred by Article19(1)(a) and hence, cannot be regarded as a reasonable restrictionin a democratic republic. A restriction that goes beyond therequirement of public interest cannot be considered as a reasonablerestriction and would be arbitrary.Additionally, when the provisioneven goes to the extent of speaking of truth as an offencepunishable with imprisonment, it deserves to be declaredunconstitutional, for it defeats the cherished value as enshrinedunder Article 51-A(b) which is associated with the national strugglefor freedom. The added requirement of the accused having toprove that the statement made by him was for the public good isunwarranted and travels beyond the limits of reasonablenessbecause the words “public good” are quite vague as they do notprovide any objective standard or norm or guidance as aconsequence the provisions do not meet the test of reasonablerestriction and eventually they have the chilling effect on thefreedom of speech.

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9.4. “Reasonableness” is not a static concept, and it may varyfrom time to time. What is considered reasonable at one point oftime may become arbitrary and unreasonable at a subsequentpoint of time.The colonial law has become unreasonable andarbitrary in independent India which is a sovereign, democraticrepublic and it is a well-known concept that provisions once heldto be reasonable, become unreasonable with the passage of time.

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10.3. Reasonable restriction is founded on the principle ofreasonableness which is an essential facet of constitutional lawand one of the structural principles of the Constitution is that if therestriction invades and infringes the fundamental right in anexcessive manner, such a restriction cannot be treated to havepassed the test of reasonableness. The language employed inSections 499 and 500 IPC is clearly demonstrative of infringementin excess and hence, the provisions cannot be granted theprotection of Article 19(2) of the Constitution. Freedom ofexpression is quintessential to the sustenance of democracy whichrequires debate, transparency and criticism and dissemination ofinformation and the prosecution in criminal law pertaining todefamation strikes at the very root of democracy, for it disallowsthe people to have their intelligent judgment. The intent of thecriminal law relating to defamation cannot be the lone test toadjudge the constitutionality of the provisions and it is absolutely imperative to apply the “effect doctrine” for the purpose ofunderstanding its impact on the right of freedom of speech andexpression, and if it, in the ultimate eventuality, affects thesacrosanct right of freedom, it is ultra vires.The basic conceptof “effect doctrine” would not come in the category of exerciseof power, that is, use or abuse of power but in the compartment ofdirect effect and inevitable result of law that abridges thefundamental right.

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17.2. Articles 14 and 19 have now been read to be a part of Article21 and, therefore, any interpretation of freedom of speech underArticle 19(1)(a) which defeats the right to reputation under Article21 is untenable.The freedom of speech and expression underArticle 19(1)(a) is not absolute but is subject to constrictions under

Article 19(2). Restrictions under Article 19(2) have been imposedin the larger interests of the community to strike a proper balancebetween the liberty guaranteed and the social interests specifiedunder Article 19(2). One’s right must be exercised so as not tocome in direct conflict with the right of another citizen. Theargument of the petitioners that the criminal law of defamationcannot be justified by the right to reputation under Article 21because one fundamental right cannot be abrogated to advanceanother, is not sustainable. It is because (i) the right to reputationis not just embodied in Article 21 but also built in as a restrictionplaced in Article 19(2) on the freedom of speech in Article 19(1)(a);and (ii) the right to reputation is no less important a right than theright to freedom of speech.

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18.2. Misuse of a provision or its possibility of abuse is no groundto declare Section 499 IPC as unconstitutional. If a provision oflaw is misused or abused, it is for the legislature to amend, modifyor repeal it, if deemed necessary. Mere possibility of abuse of aprovision cannot be a ground for declaring a provision procedurallyor substantively unreasonable.

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76. The submission is that Sections 499 and 500 IPC are notconfined to defamation of the State or its components but includedefamation of any private person by another private person totallyunconnected with the State. In essence, the proponement is thatthe defamation of an individual by another individual can be a civilwrong but it cannot be made a crime in the name of fundamentalright as protection of private rights qua private individuals cannotbe conferred the status of fundamental rights.If, argued the learnedcounsel, such a pedestal is given, it would be outside the purviewof Part III of the Constitution and run counter to Articles 14, 19and 21 of the Constitution. It is urged that defamation of a privateperson by another person is unconnected with the fundamentalright conferred in public interest by Article 19(1)(a); and afundamental right is enforceable against the State but cannot beinvoked to serve a private interest of an individual. Elucidating thesame, it has been propounded that defamation of a private person A

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by another person cannot be regarded as a “crime” under theconstitutional framework and hence, what is permissible is thecivil wrong and the remedy under the civil law. Section 499 IPC,which stipulates defamation of a private person by anotherindividual, has no nexus with the fundamental right conferred underArticle 19(1)(a) of the Constitution, for Article 19(2) is meant toinclude the public interest and not that of an individual and,therefore, the said constitutional provision cannot be the sourceof criminal defamation. This argument is built up on two grounds:(i) the common thread that runs through the various groundsengrafted under Article 19(2) is relatable to the protection of theinterest of the State and the public in general and the word“defamation” has to be understood in the said context, and (ii) theprinciple of noscitur a sociis, when applied, “defamation” remotelycannot assume the character of public interest or interest of thecrime inasmuch a crime remotely has nothing to do with the same.

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90. In R. Sai Bharathi v. J. Jayalalitha, (2004) 2 SCC 9, whileopining about crime, it has been observed as under: (SCC pp. 54-55, para 56)

“56. Crime is applied to those acts, which are against socialorder and are worthy of serious condemnation. Garafalo, aneminent criminologist, defined “crime” in terms of immoral andanti-social acts. He says that:

‘crime is an immoral and harmful act that is regarded as criminalby public opinion because it is an injury to so much of themoral sense as is possessed by a community — a measurewhich is indispensable for the adaptation of the individual to’society.

The authors of the Indian Penal Code stated that:

‘… We cannot admit that a Penal Code is by any means to beconsidered as a body of ethics, that the legislature ought topunish acts merely because those acts are immoral, or that,because an act is not punished at all, it follows that the legislatureconsiders that act as innocent. Many things which are notpunishable are morally worse than many things which arepunishable. The man who treats a generous benefactor with

gross ingratitude and insolence deserves more severereprehension than the man who aims a blow in passion, orbreaks a window in a frolic; yet we have punishment for assaultand mischief, and none for ingratitude. The rich man whorefuses a mouthful of rice to save a fellow creature from deathmay be a far worse man than the starving wretch who snatchesand devours the rice; yet we punish the latter for theft, and wedo not punish the former for hard-heartedness.’”

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96. We have referred to this facet only to show that the submissionso astutely canvassed by the learned counsel for the petitionersthat treating defamation as a criminal offence can have no publicinterest and thereby it does not serve any social interest or collectivevalue is sans substratum. We may hasten to clarify that creationof an offence may be for some different reason declaredunconstitutional but it cannot be stated that the legislature cannothave a law to constitute an act or omission done by a personagainst the other as a crime. It depends on the legislative wisdom.Needless to say, such wisdom has to be in accord with constitutionalwisdom and pass the test of constitutional challenge. If the lawenacted is inconsistent with the constitutional provisions, it is theduty of the Court to test the law on the touchstone of theConstitution.

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122. In State of Madras v. V.G. Row, AIR 1952 SC 196, theCourt has ruled that the test of reasonableness, whereverprescribed, should be applied to each individual statute impugnedand no abstract standard, or general pattern of reasonablenesscan be laid down as applicable to all cases. The nature of the rightalleged to have been infringed, the underlying purpose of therestrictions imposed, the extent and urgency of the evil sought tobe remedied thereby, the disproportion of the imposition, theprevailing conditions at the time, should all enter into the judicialverdict.

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127. In Sahara India Real Estate Corpn. Ltd. v. SEBI, (2012)10 SCC 603, this Court reiterated the principle of social interest in

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Athe context of Article 19(2) as a facet of reasonable restriction.In Dwarka Prasad Laxmi Narain v. State of U.P., AIR 1954SC 224, while deliberating upon “reasonable restriction” observedthat it connotes that the limitation imposed upon a person inenjoyment of a right should not be arbitrary or of an excessivenature beyond what is required in the interest of the public. It wasBalso observed that to achieve quality of reasonableness a properbalance between the freedom guaranteed under Article 19(1)(g)and the social control permitted by clause (6) of Article 19 has tobe struck.”

(emphasis supplied)

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When we consider the aforesaid dictum and apply to the Act,nothing can be more sinister, immoral and anti-social act allowing femalefoeticide. In R. Sai Bharathi v. J. Jayalalitha (supra) it has beenobserved that crime is against social order, immoral and harmful act. Ithas also been observed by this Court that legislature can have a law toDconstitute an act or omission done by a person against the other as acrime. Considering the evils sought to be remedied it cannot be saidthat the imposition in the Act in question is disproportionate. Therestrictions and the provisions of punishment have close nexus with theobject sought to be achieved. It is not possible to term action as merelyEclerical one as that is pre-requisite for the test/procedure and that iswhat is intended by the Act, if it is given a go-bye under the guise ofclerical error, the Act would be rendered otiose. Restriction cannot besaid to be excessive and beyond what is required in the public interest,they cater to the felt need of the society and the complex issues facingpeople which the legislature intends to solve.F

78. In Shreya Singhal v. Union of India, (2015) 5 SCC 1, theCourt dealt with provisions of Section 66-A of Information TechnologyAct, 2000. This Court has observed thus:

55. The US Supreme Court has repeatedly held in a series ofGjudgments that where no reasonable standards are laid down todefine guilt in a section which creates an offence, and where noclear guidance is given to either law abiding citizens or to authoritiesand courts, a section which creates an offence and which is vaguemust be struck down as being arbitrary and unreasonable. Thus,in Musser v. Utah, 92 L Ed 562 a Utah statute which outlawed H

conspiracy to commit acts injurious to public morals was struckdown.

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59. It was further held that a penal law is void for vagueness if itfails to define the criminal offence with sufficient definiteness.Ordinary people should be able to understand what conduct isprohibited and what is permitted. Also, those who administer thelaw must know what offence has been committed so that arbitraryand discriminatory enforcement of the law does not take place.

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66. In Federal Communications Commission v. Fox TelevisionStations Inc., 132 S Ct 2307 it was held: (S Ct p. 2317)

“A fundamental principle in our legal system is that laws whichregulate persons or entities must give fair notice of conductthat is forbidden or required. See Connally v. GeneralConstruction Co., 269 US 385, US 391 (“[A] statute whicheither forbids or requires the doing of an act in terms so vaguethat men of common intelligence must necessarily guess at itsmeaning and differ as to its application, violates the first essentialof due process of law”); Papachristou v. Jacksonville, 405US 156, US 162 {“Living under a rule of law entails varioussuppositions, one of which is that ‘[all persons] are entitled tobe informed as to what the State commands or forbids’”[quoting Lanzetta v. New Jersey, 306 US 451, US 453 (alterationin original)]}. This requirement of clarity in regulation isessential to the protections provided by the Due Process Clauseof the Fifth Amendment. See United States v. Williams, 553US 285, US 304. It requires the invalidation of laws that areimpermissibly vague. A conviction or punishment fails to complywith due process if the statute or regulation under which it isobtained “fails to provide a person of ordinary intelligence fairnotice of what is prohibited, or is so standardless that itauthorizes or encourages seriously discriminatoryenforcement.”Ibid. As this Court has explained, a regulationis not vague because it may at times be difficult to prove anincriminating fact but rather because it is unclear as to whatfact must be proved. See id., at 306.

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AEven when speech is not at issue, the void for vaguenessdoctrine addresses at least two connected but discrete dueprocess concerns: first, that regulated parties should know whatis required of them so they may act accordingly; second,precision and guidance are necessary so that those enforcingthe law do not act in an arbitrary or discriminatory way. SeeBGrayned v. Rockford, 33 L Ed 2d 222, US 108-109. Whenspeech is involved, rigorous adherence to those requirementsis necessary to ensure that ambiguity does not chill protectedspeech.””

(emphasis supplied)

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It is apparent from the aforesaid discussion in Shreya Singhal(supra) in a case where no reasonable standards are laid down to defineguilt in a section which creates an offence, it would be arbitrary andunconstitutional. It is absolutely clear that the provisions in the Act inquestion cannot be termed as arbitrary or illegal or unreasonable. TheDprovisions are not vague. A responsible doctor is supposed to knowbefore undertaking such pre-natal diagnostic test etc. what is heundertaking and what his responsibilities are. If he cannot understandthe form he is required to fill and the impact of medical findings and itsconsequences which is virtually the pre-requisite for undertaking a test,Ehe is not fit to be a member of a noble medical profession. Such culpablenegligence is not warranted from a doctor. It is crystal clear from theprovisions of the Act which can be gathered by a person of ordinaryintelligence and they can have fair notice of what is prohibited and whatomission they should not make. The principles deliberated upon in ShreyaSinghal (supra) rather supports the constitutionality of the Act and theFRules framed thereunder.

79. The reliance has also been placed by the petitioner in NikeshTarachand Shah v. Union of India, (2018) 11 SCC 1, in which Courtobserved thus:

“10. On the other hand, the learned Attorney General Shri K.K.Venugopal impressed upon us the fact that the Parliamentarylegislation qua money laundering is an attempt by Parliament toget back money which has been siphoned off from the economy.According to the learned Attorney General, scheduled offencesand offences under Sections 3 and 4 of the 2002 Act have to be G

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read together and the said Act, therefore, forms a complete codewhich must be looked at by itself. According to the learned AttorneyGeneral, it is well settled that classification which is punishmentcentric has been upheld by a catena of judgments and so have thetwin conditions been upheld by various decisions which werereferred to by him. According to him, the expression “any offence”in Section 45(1)(ii) would mean offence of a like nature and notany offence, which would include a traffic offence as well.According to the learned Attorney General, Section 45 can easilybe read down to make it constitutional in two ways. First, theexpression “there are reasonable grounds for believing that he isnot guilty of such offence” must be read as the making of a primafacie assessment by the court of reasonable guilt.Secondly,according to the learned Attorney General, in any case theconditions contained in Section 45(1)(ii) are there in a differentform when bail is granted ordinarily insofar as offences generallyare concerned and he referred to State of U.P. v. AmarmaniTripathi, (2005) 8 SCC 21 for this purpose. According to the learnedAttorney General, if harmoniously construed with the rest of theAct, Section 45 is unassailable. He relied upon Section 24 of theAct, which inverts the burden of proof, and strongly relied uponGautam Kundu v. Directorate of Enforcement, (2015) 16 SCC 1and Rohit Tandon v. Directorate of Enforcement, (2018) 11 SCC46. In answer to Shri Rohatgi’s argument on the object of the2012 Amendment Act, according to the learned Attorney General,it is well settled that where the language of the Act is plain, norecourse can be taken to the object of the Act and he cited anumber of judgments for this proposition. He referred us to Section106 of the Evidence Act, 1872 and argued that when read withSection 24 of the 2002 Act, it would be clear that the twinconditions contained in Section 45 are only in furtherance of theobject of unearthing black money and that we should, therefore,be very slow to set at liberty persons who are alleged offendersof the cancer of money laundering. Ultimately, according to thelearned Attorney General, Section 45 being part of a completecode must be upheld in order that the 2002 Act work, so thatmoney that is laundered comes back into the economy and personsresponsible for the same are brought to book.

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46. We must not forget that Section 45 is a drastic provision whichturns on its head the presumption of innocence which isfundamental to a person accused of any offence. Beforeapplication of a section which makes drastic inroads into thefundamental right of personal liberty guaranteed by Article 21 ofthe Constitution of India, we must be doubly sure that such provisionfurthers a compelling State interest for tackling serious crime.Absent any such compelling State interest, the indiscriminateapplication of the provisions of Section 45 will certainly violateArticle 21 of the Constitution. Provisions akin to Section 45 haveonly been upheld on the ground that there is a compelling Stateinterest in tackling crimes of an extremely heinous nature.

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49. The learned Attorney General relied heavily on Section 24 ofthe 2002 Act to show that the burden of proof in any proceedingrelating to proceeds of crime is upon the person charged with theDoffence of money laundering, and in the case of any other personi.e. a person not charged with such offence, the court may presumethat such proceeds are involved in money laundering. Section 45of the Act only speaks of the scheduled offence in Part A of theSchedule, whereas Section 24 speaks of the offence of moneyElaundering, and raises a presumption against the person prosecutedfor the crime of money laundering. This presumption has noapplication to the scheduled offence mentioned in Section 45, andcannot, therefore, advance the case of the Union of India.”

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80. Reliance has also been placed in P. Rathinam v. Union of India,(1994) 3 SCC 394, this Court observed thus:

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48. The aforesaid show that law has many promises to keepincluding granting of so much of liberty as would not jeopardisethe interest of another or would affect him adversely, i.e., allowingof stretching of arm up to that point where the other fellow’s nose

does not begin. For this purpose, law may have “miles to go”.Then, law cannot be cruel, which it would be because of what isbeing stated later, if persons attempting suicide are treated ascriminals and are prosecuted to get them punished, whereas whatthey need is psychiatric treatment, because suicide basically is a“call for help”, as stated by Dr (Mrs) Dastoor, a BombayPsychiatrist, who heads an organisation called “Suicide Prevent”.May it be reminded that a law which is cruel violates Article 21 ofthe Constitution, a la, Deena v. Union of India, (1983) 4 SCC645.

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51. A crime presents these characteristics: (1) it is a harm, broughtabout by human conduct which the sovereign power in the Statedesires to prevent; (2) among the measures of prevention selectedis the threat of punishment; and (3) legal proceedings of a specialkind are employed to decide whether the person accused did infact cause the harm, and is, according to law, to be held legallypunishable for doing so. (See pp. 1 to 5 of Kenny’s Outlines ofCriminal Law, 19th Edn., for the above propositions.)

(emphasis supplied)

81. We find that Act intends not to jeopardise the female foetus.As such curtailment of the liberty in cause of such a violation cannot besaid to be disproportionate.

82. Reliance has also been placed on State of Uttar Pradesh v.Wasif Haider, (2019) 2 SCC 303, in which it has been laid down that anoffence has to be proved beyond reasonable doubt. The relevant portionof the decision is extracted hereunder:

“22. In the instant appeals before us, the prosecution has failed tolink the chain of circumstances so as to dispel the cloud of doubtabout the culpability of the respondent-accused. It is a well-settledprinciple that a suspicion, however grave it may be cannot takeplace of proof i.e. there is a long distance between “may be” and“must be”, which must be traversed by the prosecution to proveits case beyond reasonable doubt [See Narendra Singh v. State ofM.P., (2004) 10 SCC 699].”

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There is no dispute with the aforesaid proposition, but that is notthe question before us. When trial takes place obviously the commissionof the offence has to be proved as required under the relevant applicablelaw.

83. There can be a legislative provision for imposing burden ofBproof in reverse order relating to gender justice. In the light of prevalentviolence against women and children, the Legislature has enacted variousActs, and amended existing statutes, reversing the traditional burden ofproof. Some examples of reversed burden of proof in statutes includeSections 29 and 30 of the Protection of Children from Sexual Offences(POCSO) Act in which there is presumption regarding commission andCabetment of certain offences under the Act, and presumption of mentalstate of the accused respectively. In Sections 113-A and 113-B of theIndian Evidence Act there is presumption regarding abetment of suicideand dowry death, and in Section 114-A of the Indian Evidence Act thereis presumption of absence of consent of prosecutrix in offence of rape.

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84. These provisions are a clear indication of the seriousness withwhich crimes against women and children have been viewed by theLegislature. It is also evident from these provisions that due to thepervasive nature of these crimes, the Legislature has deemed it fit toemploy a reversed burden of proof in these cases. The presumption inEthe proviso to Section 4(3) of the Act has to be viewed in this light.

85. The Act is a social welfare legislation, which was conceivedin light of the skewed sex-ratio of India and to avoid the consequencesof the same. A skewed sex-ratio is likely to lead to greater incidences ofviolence against women and increase in practices of trafficking, ‘bride-Fbuying’ etc. The rigorous implementation of the Act is an edifice onwhich rests the task of saving the girl child.

86. In view of the aforesaid discussion and in our opinion, no caseis made out to hold that deficiency in maintaining the record mandatedby Sections 5, 6 and the proviso to Section 4(3) cannot be diluted as theGaforesaid provisions have been incorporated in various columns of theForm ‘F’ and as already held that it would not be a case clerical mistakebut absence of sine qua non for undertaking a diagnostic test/procedure.It cannot be said to be a case of clerical or technical lapse. Section23(1) need not have provided for gradation of offence once offence isof non-maintenance of the record, maintenance of which itself intend to H

prevent female foeticide. It need not have graded offence any furtherdifference is so blur it would not be possible to prevent crime. Thereneed not have been any gradation of offence on the basis of actualdetermination of sex and non-maintenance of record as undertaking thetest without the pre-requisites is totally prohibited under the Act. Thenon-maintenance of record is very foundation of offence. For first andsecond offences, gradation has been made which is quite reasonable.

87. Provisions of Section 23(2) has also been attacked on theground that suspension on framing the charges should not be on thebasis of clerical mistake, inadvertent clerical lapses. As we found it isnot what is suggested to be clerical or technical lapse nor it can be saidto be inadvertent mistakes as existence of the particular medical conditionis mandated by Sections 4 and 5 including the age etc. Thus, suspensionon framing of charges cannot be said to be unwarranted. The sameintends to prevent mischief. We are not going into the minutes what canbe treated as a simple clerical mistake that has to be seen case wise andno categorization can be made of such mistakes, if any, but with respectto what is mandatory to be provided in the Form as per provisions ofvarious 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 Actunder the provisions relating to appeal, the Supervisory Board as well asthe Appropriate Authority, its Advisory Committee and we find that theprovisions cannot be said to be suffering from any vice as framing of thecharges would mean prima facie case has been found by the Court andin that case, suspension cannot be said to be unwarranted.

88. It was also prayed that action should be taken under Section20 after show cause notice and reasonable opportunity of being heard.There is already a provision in Section 20(1) to issue a show cause andin Section 20(2) contains the provision as to reasonable opportunity ofbeing heard. Thus, we find no infirmity in the aforesaid provision.

89. There also the Appropriate Authority to consider each caseon merits with the help of Advisory Body which has legal expert. TheAdvisory Committee consists of one legal expert which has to aid andadvise 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.

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A90. It was also contended that action of seizure of ultrasonographymachine and sealing the premises cannot be said to be appropriate. Thesubmission is too tenuous and liable to be rejected. Section 30 of the Actenumerates the power of search and seizure and Rules 11 and 12 of theRules provide for the power of the Appropriate Authority to sealequipment, inspect premises and conduct search and seizure. It wasBpointed out by the respondents that a “Standard Operational Procedure”,detailing the procedure for search and seizure has been developed bythe Ministry of Health and Family Welfare. Further, regular training ofAppropriate Authorities is being carried out at both the National andState level. All the States have also been directed to develop online MISCfor monitoring the implementation of the Act. It is settled propositionthat when offence is found to be committed, there can be seizure andsealing of the premises and equipment during trial as no license can begiven to go on committing the offence. Such provisions of seizure/sealing,pending trial are to be found invariably in various penal legislations. Theimpugned provisions contained in the Act constitute reasonable restrictionsDto carry on any profession which cannot be said to be violative of Rightto Equality enshrined under Article 14 or right to practise any professionunder Article 19(1)(g). Considering the Fundamental Duties under Article51A(e) and considering that female foeticide is most inhumane act andresults in reduction in sex ratio, such provisions cannot be said to beEillegal and arbitrary in any manner besides there are various safeguardsprovided in the Act to prevent arbitrary actions as discussed above.

91. In light of the nature of offences which necessitated theenactment of the Act and the grave consequences that would ensueotherwise, suspension of registration under Section 23(2) of the Act serves Fas a deterrent. The individual cases cited by the petitioner-Society cannotbe a ground for passing blanket directions, and the individuals haveremedies under the law which they can avail. Moreover, the concept ofdouble jeopardy would have no application here, as it provides that aperson shall not be convicted of the same offence twice, which is demonstrably not the case here. Suspension is a step-in-aid to furtherGthe intendment of act. It cannot be said to be double punishment. Incase an employee is convicted for an offence, he cannot continue inservice which can be termed to be double jeopardy.

92. Non maintenance of record is spring board for commission ofoffence of foeticide, not just a clerical error. In order to effectivelyHimplement 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 impropermaintenance of such record amounts to violation of provisions of Sections5 and 6 of the Act, by virtue of proviso to Section 4(3) of the Act. Inaddition, any breach of the provisions of the Act or its Rules wouldattract cancellation or suspension of registration of Genetic CounsellingCentre, Genetic Laboratory or Genetic Clinic, by the AppropriateAuthority as provided under Section 20 of the Act.

93. There is no substance in the submission that provision of Section4(3) be read down. By virtue of the proviso to Section 4(3), a personconducting ultrasonography on a pregnant woman, is required to keepcomplete record of the same in the prescribed manner and any deficiencyor inaccuracy in the same amounts to contravention of Section 5 orSection 6 of the Act, unless the contrary is proved by the personconducting the said ultrasonography. The aforementioned proviso toSection 4(3) reflects the importance of records in such cases, as theyare often the only source to ensure that an establishment is not engagedin 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 providesfor punishment for any medical geneticist, gynecologist, registered medicalpractitioner or a person who owns a Genetic Counselling Centre, a GeneticClinic or a Genetic Laboratory, and renders his professional or technicalservices to or at said place, whether on honorarium basis or otherwiseand contravenes any provisions of the Act, or the Rules under it.

95. Therefore, dilution of the provisions of the Act or the Ruleswould 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 theConstitution, to a mere formality.

96. In view of the above, no case is made out for striking downthe proviso to Section 4(3), provisions of Sections 23(1), 23(2) or to readdown Section 20 or 30 of the Act. Complete contents of Form ‘F’ areheld to be mandatory. Thus, the writ petition is dismissed. No costs.

Ankit Gyan

Writ petition dismissed.

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