Supreme Court upholds Constitutionality of provisions of Prohibition of Sex Selection) Act, 1994

The Supreme Court has upheld the Constitutional validity of Sections 23(1) and 23(2) of Preconception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (Act)..The judgment was delivered by a Bench of Justices Arun Mishra and Vineet Saran in a petition filed by 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 Act..The petitioner had challenged the constitutional validity of Sections 23(1) and 23(2) of the Act and had sought direction for decriminalising anomalies in paperwork/recordkeeping/clerical errors in regard of the provisions of the Act for being violative of Articles 14, 19(1)(g) and 21 of the Constitution of India..Submissions.Petitioner.The petitioner-society is the apex body of obstetricians and gynaecologists in the country..The case set up on behalf of the petitioner-society was that 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.It was the petitioner’s contention that the Act fails to distinguish between criminal offences and the anomalies in paperwork like incomplete ‘F’ Forms, clerical mistakes such as writing NA or incomplete address, no mentioning of the date, objectionable pictures of Radha Krishna in sonography room, faded notice board, striking out details in the Form ‘F’ etc..It was further submitted that 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..This, the petitioner had contended that the members of the petitioner-Society were being charged for the heinous crime of female foeticide and sex determination merely for unintentional mistakes in record keeping..It was contended that the ambiguous wording of Section 23(1) of the Act resulted in grave miscarriage of justice and the members of the petitioner-Society have faced grave hardships and have undergone criminal prosecution for an act, which cannot be equated with the acts of sex determination..Even the smallest anomaly in paperwork which is, in fact, an inadvertent and unintentional error, made the obstetricians and gynaecologists vulnerable to prosecution by authorities all over the country..The Act provides same punishment for the contravention of any provision of the Act, thus equating the anomalies in paperwork and the offence of sex determination and gender selection on the same pedestal..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 the trial..The petitioner-society had 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..Further, the petitioner had also prayed for reading down of proviso to Section 4(3) of the Act..Proviso to Section 4(3) makes it mandatory that persons conducting ultrasonography on a pregnant woman shall keep complete record as may be prescribed and any deficiency or inaccuracy found therein shall amount to a contravention of the provisions of Section 5 or Section 6 unless the contrary is proved by the person conducting such ultrasonography..The petitioners had argued that the presumption of innocence ought not to be done away with under the Act. The same is part of human rights. Presumption of innocence continues until conviction..Any deficiency or inaccuracy in the maintenance of records ought not amount to a contravention under Section 5 or Section 6 and the proviso to Section 4(3) should accordingly be diluted..The petitioner, therefore, sought clarification that contravention of proviso to Section 4(3), Section 29 and Rule 9 or technical lapses attracting minor penalty should not attract Section 27 of the Act. The provision of Section 23(2) should be read down so that suspension should not fall under Section 23(2) in the case of clerical mistakes or inadvertent technical errors/lapses..The Central government, on the other hand, had contended that the Act is a social welfare legislation which was enacted with a social objective to prevent the elimination of girls before birth. It is not a general law providing any general right to practice medicine..The Act was enacted with a purpose to ban the use of sex selection techniques before or after conception, prevent the misuse of prenatal diagnostic techniques for sex-selection abortions and to regulate such techniques..The Act empowers the Central Government to regulate the use of prenatal diagnostic techniques. The proliferation of the technology is resulting in a catastrophe in the form of female foeticide leading to severe imbalance in child sex ratio and sex ratio at birth..The Centre was duty bound to intervene in such a case to uphold the welfare of the society, especially of the women and the children. It is mandatory to maintain proper record in respect of the use of ultrasound machines under the Act..It was contended by the Centre that Section 23 is the central provision in the scheme of the Act. Form ‘F’ is very important as it gives the details and the reasons for conducting ultrasonography and incomplete Form ‘F’ raises the presumption of doubt against the medical practitioner..The filling of Form ‘F’ is commensurate with the objects of the Act which is to regulate the technology and to avoid the abuse of the technology for the purpose of sex determination. It gives the insight into the reasons for conducting ultrasonography and incomplete Form ‘F’ raises presumption of doubt against the medical practitioner and in the absence of Form ‘F’, the Appropriate Authority will have no means to supervise the usage of the ultrasonography machine and shall not be able to regulate the use of the technique..Thus, it was argued that the non-maintenance of records is not merely a technical or procedural lapse in the context of sex determination, it is the most significant piece of evidence for identifying the accused..Section 23 and Form ‘F’ are interlinked, thus, the provisions cannot be diluted. It was, therefore, Centre’s submission that the non-maintenance of records is not merely procedural lapse. It is key evidence given the collusive nature of the crime..Therefore, equating the clerical errors on the same footing with the actual offence of sex determination is in compliance with the provisions of the Act and rules thereunder. The Act does not differentiate among the violations committed by doctors and provides for punishment for all violations under the Act. The Act prescribes punishment in furtherance of its object and purposes which is to prevent detection of a female foetus which is in the larger public interest. Hence, it was Centre’s case that Section 23 of the Act does not violate Articles 14 and 21..Judgment.The Court noted that there have been only 586 convictions out of 4202 cases registered even after 24 years of existence of the Act. It reflected the challenges being faced by the Appropriate Authority in implementing this social legislation..The Court proceeded to analyse the issue of whether errors especially when it comes to filling of Form F are merely clerical in nature or not..“In order to appreciate whether it is clerical omission or otherwise, we have to delve on the provisions of the Act what is mandated thereunder.” .For this purpose, it analysed Form F in detail..When Form ‘F’ is scrutinised along with the provisions of the Act/Rules and there cannot be any dispute with respect to serial Nos.1 and 2 wherein name and address of Genetic Laboratory and its registration number is required to be mentioned in the Form as it is necessary to have a registration under Section 18 of the Act. It cannot be said to be a clerical requirement, the Court held..Likewise, patient name and her age at serial No.3 is also absolutely necessary so as to identify a person who is undergoing the test and before the age of 35 years, it cannot be conducted as provided under Section 4(3)(i). The same is as per the mandatory requirement of Section 4. Husband’s/father’s name is also necessary as per the statutory mandate for the purpose of identification of the patient. The full address is also mandatory so as to ascertain the identity of who is undergoing such test..In case such information is kept vague, the violation of the Act would be blatant and unchecked and offence can never be detected..Information at serial No.8 of the Form ‘F’ requires last menstrual period/weeks of pregnancy to be mentioned. Same is also necessary to be mentioned as it has corelation with the investigations and provisions of the Act and the rules..The column in Form at serial No.9 requires history of genetic/ medical disease in the family to be specified which is as per the mandate of Section 4(3)(iv) of the Act. Form ‘F’ at serial No.10 requires indication for prenatal diagnosis which is mandatory as per the provisions contained in Section 4(2) as except for the purposes as mentioned in Sections 4(2) and 4(3) no such tests/procedures can be performed. Thus, what is mandated by the Sections and in Rule 9 has been mentioned in the Form ‘F’..Thus, it was the Court’s opinion that though the submission of the petitioner that Form ‘F’ is clerical requirement appears at the first blush to be worthy of examination, but on close scrutiny it can be found that in case any information in the Form is avoided, it will result in the blatant violation of the provisions of Section 4 and may lead to result which is prohibited under Section 6..It cannot be said to be a case of clerical error as the doctor has to fulfill prerequisites for undertaking the procedure. In case the conditions precedent for undertaking prenatal diagnostic test is not specifically mentioned, it would be violative of provisions contained in Section 4..Form ‘F’ being technical in nature gives insight into the reasons for conducting ultrasonography and incomplete Form ‘F’ raises the presumption of doubt against the medical practitioner. In the absence of Form ‘F’, Appropriate Authorities will have no tool to supervise the usage of ultrasound machine and shall not be able to regulate the use of the technique which is the object of the Act, the Court ruled..Thus, the Court concluded that it is not a clerical job to fill the form. Rather, it is the condition precedent for undertaking test/procedure..On Section 23, the Court held that the same is not a standalone provision. It is rather used in the enforcement of other provisions of the Act and violations of Section 23 are often accompanied by violations of provisions of Sections 4, 5, 6 and 18 of the Act..Non-maintenance of record in the context of sex determination is not merely a technical or procedural lapse. It is the most significant piece of evidence for identifying the offence and the accused. The inspection of records is crucial to identify wrongdoers as the crime of sex determination is a collusive crime given the nexus between the patients and the doctors. Accordingly, punishment is provided in Section 23 for not maintaining the records..Noting that the problem of female foeticide is worldwide and the matters of common knowledge, reports and history are the basis of the legislation, provisions of the Act cannot be termed to be illegal or arbitrary..“The Act enjoys a presumption of constitutionality. We find no violation of the Constitutional principles. The problem of female foeticide is worldwide and the matters of common knowledge, reports and history are the basis of the legislation, provisions of which cannot be termed to be illegal or arbitrary in any manner.”.Regarding shifting of the burden of proof under Section 4(3), the Court held that there can be a legislative provision for imposing the burden of proof in reverse order relating to gender justice. In the light of prevalent violence against women and children, the Legislature has enacted various Acts, and amended existing statutes, reversing the traditional burden of proof..Some examples of the reversed burden of proof in statutes include Sections 29 and 30 of the Protection of Children from Sexual Offences (POCSO) Act in which there is presumption regarding commission and abetment of certain offences under the Act, and presumption of mental state of the accused respectively. In Sections 113A and 113B of the Indian Evidence Act, there is presumption regarding abetment of suicide and dowry death, and in Section 114A of the Indian Evidence Act there is a presumption of absence of consent of prosecutrix in the offence of rape..The presumption in the proviso to Section 4(3) of the Act has to be viewed in this light. Hence, Sections 5, 6 and the proviso to Section 4(3) cannot be diluted as the aforesaid provisions have been incorporated in various columns of the Form ‘F’..When sex selection is prohibited by virtue of provisions of Section 6, the other interwoven provisions in the Acts intended to prevent the mischief have to be upheld, the Court observed..Thus, the Court ruled that no case is made out for striking down the proviso to Section 4(3), provisions of Sections 23(1), 23(2) or to read down Sections 20 or 30 of the Act. Complete contents of Form ‘F’ are held to be mandatory. The Court, therefore, dismissed the petition..Senior Advocates Shyam Divan and Soli Sorabjee appeared for the petitioner while Additional Solicitor General Pinky Anand represented the Central government..[Read Judgment].Bar & Bench is available on WhatsApp. For real-time updates on stories, click here to subscribe to our WhatsApp.