IN THE SUPREME COURT OF INDIA
Writ petition (civil) no. 129 of 2017
Federation of Obstetrics and Gynaecological Societies of India (FOGSI)
Union of India and others.
Date of Judgement
3rd May 2019
Arun Mishra. J
The Petitioner Federation of Obstetrics and Gynaecological Societies of India (FOGSI) highlighting the issues and problems affecting the practice of obstetricians and gynaecologists across the country under the Preconception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (hereinafter referred to as ‘the Act’) and challenging the constitutional validity of Sections 23(1) and 23(2) of the Act. The Act was enacted with the objective to prohibit prenatal diagnostic techniques for determination of sex of the foetus leading to female foeticide. But unfortunately, its implementation is more in letter and less in spirit. The problem of sex determination and gender selection is a serious issue and is one of the biggest social problems faced by our society. Despite enactment of the Act and subsequent amendments, the Child Sex Ratio has not shown significant improvement, hence, putting sufficient concern and questions on the proper implementation of the Act. It is contended that equating clerical errors on the same footing with the actual offence of sex determination shows the inherent weakness in the language of the Act, the ambiguous wording of Section 23(1) of the Act has resulted in grave miscarriage of justice and the members of the petitioner Society have faced grave hardships and have undergone criminal prosecution for act, which cannot be equated with the acts of sex determination.
It is averred that even the smallest anomaly in paperwork which is in fact an inadvertent and unintentional error has made the obstetricians and gynaecologists vulnerable to the prosecution by the Authorities all over country. Section 23(2) of the Act empowers the State Medical Council to suspend the registration of any doctor indefinitely, who is reported by the Appropriate Authority for necessary action, during the pendency of trial. The petitioner Society submitted that Section 23(2) of the Act is ultra vires the Constitution as it assumes the guilt of the alleged accused even before his/her conviction by a competent court and hence violates the fundamental right guaranteed under Article 21 of the Constitution.
- Whether Section 23(2) of the Act empowers the State Medical Council to suspend the registration of any doctor?
- Whether presumption of innocence is a cardinal principle of rule of law for which petitioner Society has placed reliance on Article 14(2) of the International Covenant on Civil and Political Rights?
Arguments from the Petitioner:
1. The suspension of the medical licence at the stage of framing of charges is highly improper and harsh, which results in loss of livelihood of not only the members of the Society, but also his family as well as the dependents, who are deprived of financial security and wellbeing. The vague and ambiguous wordings of Section 23(1)renders Section 25 totally redundant.
2. Form F as it stands today does not serve the purpose for which it was made and there is no substantive evidence which proves that errors in Form F have any direct nexus with the offence of sex selection and determination.
Arguments from the Respondents:
The respondents argued that reliance on decision rendered by High Court of Gujarat in Suo Motu v. State of Gujarat, (2009) 1 GLR 64, which dealt with the issue of proper maintenance of records and to the decision rendered by High Court of Rajasthan in S.K. Gupta v. Union of India, wherein it was observed that female infants have also right to live. There is right of still born child to be looked after properly during pregnancy. Once a child is conceived, it has to be treated with dignity. Such right cannot be denied and practice of female foeticide/infanticide is prevailing at large which is illegal and unconstitutional. The provisions of Regulation 1.3 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002; Regulation 6.2 of Pharmacy Practice Regulation, 2015; and Transplantation of Human Organs and Tissues Act, 1994, which contains the provisions with respect to maintenance of proper records. Section 23 and Section 25 are complimentary to each other, not contradictory as contended by the petitioner Society. It is lastly contended that no case for striking down the proviso to Section 4(3) is made out.
The Court held that non maintenance of record is spring board for commission of offence of foeticide, not just a clerical error. “In order to effectively implement the various provisions of the Act, the detailed forms in which records have to be maintained have been provided for by the Rules. These Rules are necessary for the implementation of the Act and improper maintenance of such record amounts to violation of provisions of Sections 5 and 6 of the Act, by virtue of proviso to Section 4(3) of the Act. In addition, any breach of the provisions of the Act or its Rules would attract cancellation or suspension of registration of Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic, by the Appropriate Authority as provided under Section 20 of the Act.” The impugned provisions contained in the Act constitute reasonable restrictions to carry on any profession which cannot be said to be violative of Right to Equality enshrined under Article 14 or right to practise any profession under Article 19(1)(g). Considering the Fundamental Duties under Article 51A (e) and considering that female foeticide is most inhumane act and results in reduction in sex ratio, such provisions cannot be said to be illegal and arbitrary in any manner besides there are various safeguards provided in the Act to prevent arbitrary actions.
Edited by Sree Ramya
Approved & Published – Sakshi Raje