1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
I.A Nos. 13-15 of 2017
IN
SPECIAL LEAVE PETITION (C) Nos. 16657-16659 OF 2016
UNION OF INDIA ..Petitioner
VERSUS
INDIAN RADIOLOGICAL AND IMAGING ..Respondents
ASSOCIATION AND ORS. ETC. ETC.
O R D E R
1 We have heard learned counsel for the contesting parties and considered
the written submissions tendered, for the purpose of evaluating the grant of
interim relief.
2
2 In Voluntary Health Association of Punjab v Union of India1
, this Court
by a judgment dated 8 November 2016 issued comprehensive directions for the
purpose of effective implementation of the provisions of the Pre-conception and
Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 19942
. The
directions issued by this Court are extracted below:
“33. Keeping in view the deliberations made from time to time and
regard being had to the purpose of the Act and the far reaching
impact of the problem, we think it appropriate to issue the
following directions in addition to the directions issued in the
earlier order:-
(a) All the States and the Union Territories in India shall maintain
a centralized database of civil registration records from all
registration units so that information can be made available
from the website regarding the number of boys and girls being
born.
(b) The information that shall be displayed on the website shall
contain the birth information for each District, Municipality,
Corporation or Gram Panchayat so that a visual comparison of
boys and girls born can be immediately seen.
(c) The statutory authorities if not constituted as envisaged under
the Act shall be constituted forthwith and the competent
authorities shall take steps for the reconstitution of the
statutory bodies so that they can become immediately
functional after expiry of the term. That apart, they shall meet
regularly so that the provisions of the Act can be implemented
in reality and the effectiveness of the legislation is felt and
realized in the society.
(d) The provisions contained in Sections 22 and 23 shall be strictly
adhered to. Section 23(2) shall be duly complied with and it
shall be reported by the authorities so that the State Medical
Council takes necessary action after the intimation is given
under the said provision. The Appropriate Authorities who have
been appointed under Section 17(1) and 17(2) shall be
imparted periodical training to carry out the functions as
required under various provisions of the Act.
(e) If there has been violation of any of the provisions of the Act or
the Rules, proper action has to be taken by the authorities
1 Writ Petition (c) No. 349 of 2006
2 PCPNDT Act
3
under the Act so that the legally inapposite acts are
immediately curbed.
(f) The Courts which deal with the complaints under the Act shall
be fast tracked and the concerned High Courts shall issue
appropriate directions in that regard.
(g) The judicial officers who are to deal with these cases under the
Act shall be periodically imparted training in the Judicial
Academies or Training Institutes, as the case may be, so that
they can be sensitive and develop the requisite sensitivity as
projected in the objects and reasons of the Act and its various
provisions and in view of the need of the society.
(h) The Director of Prosecution or, if the said post is not there, the
Legal Remembrancer or the Law Secretary shall take stock of
things with regard to the lodging of prosecution so that the
purpose of the Act is subserved.
(I) The Courts that deal with the complaints under the Act shall
deal with the matters in promptitude and submit the quarterly
report to the High Courts through the concerned Sessions and
District Judge.
(j) The learned Chief Justices of each of the High Courts in the
country are requested to constitute a Committee of three
Judges that can periodically oversee the progress of the cases.
(k) The awareness campaigns with regard to the provisions of the
Act as well as the social awareness shall be undertaken as per
the direction No.9.8 in the order dated March 4, 2013 passed
in Voluntary Health Association of Punjab (supra).
(l) The State Legal Services Authorities of the States shall give
emphasis on this campaign during the spread of legal aid and
involve the para-legal volunteers.
(m) The Union of India and the States shall see to it that
appropriate directions are issued to the authorities of All India
Radio and Doordarshan functioning in various States to give
wide publicity pertaining to the saving of the girl child and the
grave dangers the society shall face because of female
foeticide.
(n) All the appropriate authorities including the States and districts
notified under the Act shall submit quarterly progress report to
the Government of India through the State Government and
maintain Form H for keeping the information of all registrations
readily available as per sub-rule 6 of Rule 18A of the Rules.
(o) The States and Union Territories shall implement the Preconception
and Pre-natal Diagnostic Techniques (Prohibition
of Sex Selection) (Six Months Training) Rules, 2014 forthwith
4
considering that the training provided therein is imperative for
realising the objects and purpose of this Act.
(p) As the Union of India and some States framed incentive
schemes for the girl child, the States that have not framed such
schemes, may introduce such schemes.”(Emphasis supplied)
3 The PCPNDT Act was enacted by Parliament, as its Preamble indicates,
to prohibit sex-selection, and to regulate pre-natal diagnostic techniques so as
to prevent their misuse for sex determination. The Preamble reads thus:
“An Act to provide for the regulation of the use of pre-natal
diagnostic techniques for the purpose of detecting genetic or
metabolic disorders or chromosomal abnormalities or certain
congenital malformations or sex linked disorders and for the
prevention of the misuse of such techniques for the purpose of
pre-natal sex determination leading to female foeticide; and,
for matters connected there with or incidental thereto.”
4 The intent of Parliament in enacting the law is clarified in the Statement
of Objects and Reasons which accompanied the introduction of the Bill. Insofar
as it is material to the present controversy, the Statement of Objects and
Reasons reads thus:
“Introduction:
In the recent past Pre-natal Diagnostic Centres sprang up in
the urban areas of the country using pre-natal diagnostic
techniques for determination of sex of the foetus. Such centres
became very popular and their growth was tremendous as the
female child is not welcomed with open arms in most of the
Indian families. The result was that such centres became
centres of female foeticide. Such abuse of the technique is
against the female sex and affects the dignity and status of
women. Various Organisation working for the welfare and uplift
of the women raised their heads against such an abuse.”
Statement of Objects and Reasons
It is proposed to prohibit pre-natal diagnostic techniques for
determination of sex of the foetus leading to female foeticide.
5
Such abuse of techniques is determination against the female
sex and affects the dignity and status of women. A legislation
is required to regulate the use of such techniques and to
provide deterrent punishment to stop such inhuman act.
The Bill, inter alia provides for:-
(i) prohibition of the misuse of pre-natal diagnostic techniques for
determination of sex of foetus, leading to female foeticide;
(ii) prohibition of advertisement of pre-natal diagnostic techniques
for detection or determination of sex;
(iii) permission and regulation of the use of pre-natal diagnostic
techniques for the purpose of detection of specific genetic
abnormalities or disorders;
(iv) permitting the use of such techniques only under certain
conditions by the registered institutions; and
(v) punishment for violation of the provisions of the proposed
legislation.
2. The Bill seeks to achieve the above objectives.”
5 The comprehensive directions issued by this Court in its decision in
Voluntary Health Association of Punjab (Supra) must be read as integral to
the enforcement of a law which has been enacted by Parliament to curb a grave
social evil and to render the statutory provisions truly effective to curb the
mischief which was sought to be addressed by enacting the law. More
specifically, in its judgment dated 8 November 2016, this Court has required the
states and the Union territories to implement the Pre-conception and Pre-natal
Diagnostic Techniques (Prohibition of Sex Selection) (Six Months Training)
Rules, 2014 forthwith. The decision explains that the provision for training
required under the above subordinate legislation, is imperative to realise the
objects and purposes of the Act.
6
6 The impact of the directions which have been issued by this Court is
negated by a judgment rendered by a Division Bench of the Delhi High Court
on 17 February 2016 in a batch of cases including Indian Radiological and
Imaging Association (IRIA) v Union of India3
, Indian Medical Association v
Union of India4 and Sonological Society of India v Union of India5
. Before
the Delhi High Court, there was a challenge to the provisions of Rule 3(3)(1)(b)
of the PCPNDT Rules,1996 and Rule 6 of the Six Months Training Rules as
amended by a notification dated 9 January 2014. Rule 3.3(1)(b), which was in
challenge reads as follows:
“3.3(1) Any person having adequate space and being or
employing….
(a)…
(b)…a Sonologist, Imaging Specialist, Radiologist or
Registered Medical Practitioner having Post Graduate degree
or diploma or six months training duly imparted in the manner
prescribed in the “the Pre-conception and Pre-natal Diagnostic
Techniques (Prohibition of Sex Selection) (Six Months
Training) Rules, 2014.”
Rule 6 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition
of Sex Selection) (Six Months Training) Rules, 2014 is in the following terms:
“6. Eligibility for training.-
(1)Any registered medical practitioner shall be eligible for
undertaking the said six months training.
(2) The existing registered medical practitioners, who are
conducting ultrasound procedures in a Genetic Clinic or
Ultrasound Clinic or Imaging Centre on the basis of one year
experience or six months training are exempted from
undertaking the said training provided they are able to qualify
the competency based assessment specified in Schedule II
and in case of failure to clear the said competency based
exam, they shall be required to undertake the complete six
3 Writ Petition (C) No. 6968 of 2011
4 Writ Petition (C) No. 2721 of 2014
5 Writ Petition (C) No. 3184 of 2014
7
months training, as provided under these rules, for the purpose
of renewal of registrations.”
Rule 6(2) provides for an exemption to existing registered medical practitioners
conducting ultrasound procedures in a genetic or ultrasound clinic or imaging
centre subject to qualifying in the competency based assessment.
7 The Delhi High Court has inter alia held that it was unable to find any
provision in the PCPNDT Act empowering any of the bodies constituted under
the law or even the Central government to prescribe qualifications for practicing
medicine with the aid of an ultrasound imaging equipment or to prescribe the
nature and content of the curriculum or duration of the qualification. While
disposing of the batch of writ petitions, the Delhi High Court has issued the
following directions:
(i) “that Section 2(p) of the PNDT Act defining a
Sonologist or Imaging Specialist, is bad to the extent it
includes persons possessing a postgraduate
qualification in ultrasonography or imaging techniques
– because there is no such qualification recognized by
MCI and the PNDT Act does not empower the statutory
bodies constituted thereunder or the Central
Government to devise and coin new qualification;
(ii) We hold that all places including vehicles where
ultrasound machine or imaging machine or scanner or
other equipment capable of determining sex of the
foetus or has the potential of detection of sex during
pregnancy or selection of sex before conception,
require registration under the Act;
(iii) However, if the person seeking registration (a) makes
a declaration in the form to be prescribed by the Central
Supervisory Board to the effect that the said machine
8
or equipment is not intended for conducting pre-natal
diagnostic procedures; (b) gives an undertaking to not
use or allow the use of the same for pre-natal
diagnostic procedures; and, (c) has a “silent observer”
or any other equipment installed on the ultrasound
machines, as may be prescribed by the Central
Supervisory Board, capable of storing images of each
sonography tests done therewith, such person would
be exempt from complying with the provisions of the
Act and the Rules with respect to Genetic Clinics,
Genetic Laboratory or Genetic Counselling Centres;
(iv) If however for any technical reasons, the Central
Supervisory Board is of the view that such “silent
observer” cannot be installed or would not serve the
purpose, then the Central Supervisory Board would
prescribe other conditions which such registrant would
require to fulfil, to remain exempt as aforesaid;
(v) However, such registrants would otherwise remain
bound by the prohibitory and penal provisions of the
Act and would further remain liable to give inspection
of the “silent observer” or other such equipment and
their places, from time to time and in such manner as
may be prescribed by the Central Supervisory Board;
and
(vi) Rule 3(3)(1)(b) of the PNDT Rules (as it stands after
the amendment with effect from 9th January, 2014) is
ultra vires the PNDT Act to the extent it requires a
person desirous of setting up a Genetic Clinic /
Ultrasound Clinic / Imaging Centre to undergo six
months training imparted in the manner prescribed in
the Six Months Training Rules.”
8 Prima facie, the High Court has erred in its finding that there is an
absence of statutory power. Sub-section 1 of Section 32 of the PCPNDT Act
confers rule making power upon Central Government for “carrying out the
provisions of the Act”. Illustratively, sub Section 2 of Section 32 stipulates that
the rules may provide for:
9
“(i) the minimum qualifications for persons employed at a
registered Genetic Counselling Centre, Genetic Laboratory or
Genetic Clinic under clause (1) of section 3.”
The above provision refers to minimum qualifications required of persons
employed at registered genetic counselling centres, genetic laboratories or
genetic clinics under Section 3(2). Hence, it would be necessary to understand
the import of Section 3 which reads thus:
“3. Regulation of Genetic Counselling Centres, Genetic
Laboratories and Genetic Clinics.-
On and from the commencement of this Act,--
(1) no Genetic Counselling Centre, Genetic Laboratory or
Genetic Clinic unless registered under this Act, shall conduct
or associate with, or help in, conducting activities relating to
pre-natal diagnostic techniques;
(2) no Genetic Counselling Centre, Genetic Laboratory or
Genetic Clinic shall employ or cause to be employed any
person who does not possess the prescribed qualifications;
(3) no medical geneticist, gynaecologist, paediatrician,
registered medical practitioner or any other person shall
conduct or cause to be conducted or aid in conducting by
himself or through any other person, any pre-natal diagnostic
techniques at a place other than a place registered under this
Act.”
The expression ‘genetic counselling centre’ has been defined in Section 2(c) as
follows:
“(c) "Genetic Counselling Centre" means an institute, hospital,
nursing home or any place, by whatever name called, which
provides for genetic counselling to patients”
The expression ‘genetic laboratory’ is defined in Section 2(e) as follows:
(e) "Genetic Laboratory" means a laboratory and includes a
place where facilities are provided for conducting analysis or
tests of samples received from Genetic Clinic for pre-natal
diagnostic test”
10
The expression ‘genetic clinic’ is defined in Section 2(d) as follows:
“(d) "Genetic Clinic" means a clinic, institute, hospital, nursing
home or any place, by whatever name called, which is used for
conducting pre-natal diagnostic procedures”
Under Section 2(d), ‘genetic clinic’ is defined with reference to the place which
is used for conducting pre-natal diagnostic procedures. ‘Genetic laboratory’ in
Section 2(e) includes a place where facilities are provided for conducting
analysis or tests of samples received from a genetic clinic for a pre-natal
diagnostic test.
The expression ‘pre-natal diagnostic procedures’ is defined in Section 2(i) as
follows:
“(i) "pre-natal diagnostic procedures" means all gynaecological
or obstetrical or medical procedures such as ultrasonography
foetoscopy, taking or removing samples of amniotic fluid,
chorionic villi, blood or any tissue of a pregnant woman for
being sent to a Genetic Laboratory or Genetic Clinic for
conducting pre-natal diagnostic test”
Both Sections 2(i) and Section 2(k) contain a specific reference to
ultrasonography. The expression ‘sonologist or imaging specialist’ is defined in
Section 2(p) as follows:
“(p) sonologist or imaging specialist” means a person who
possesses any one of the medical qualifications recognised
under the Indian Medical Council Act, 1956 (105 of 1956) or
who possesses a post-graduate qualification in
ultrasonography or imaging techniques or radiology”
Section 4 provides thus:
“4. Regulation of pre-natal diagnostic techniques.- On and from
the commencement of this Act,--
11
(1) no place including a registered Genetic Counselling Centre
or Genetic Laboratory or Genetic Clinic shall be used or caused
to be used by any person for conducting pre-natal diagnostic
techniques except for the purposes specified in clause (2) and
after satisfying any of the conditions specified in clause (3);
(2) no pre-natal diagnostic techniques shall be conducted
except for the purposes of detection of any of the following
abnormalities, namely:--
(i) chromosomal abnormalities;
(ii) genetic metabolic diseases;
(iii) haemoglobinopathies;
(iv) sex-linked genetic diseases;
(v) congenital anomalies;
(vi) any other abnormalities or diseases as may be
specified by the Central Supervisory Board;
[(3) no pre-natal diagnostic techniques shall be used or
conducted unless the person qualified to do so is satisfied that
any of the following conditions are fulfilled, namely:--
(i) age of the pregnant woman is above thirty-five
years;
(ii) the pregnant woman has undergone two or more
spontaneous abortions or foetal loss;
(iii) the pregnant woman had been exposed to
potentially teratogenic agents such as drugs, radiation,
infection or chemicals;
(iv) the pregnant woman or her spouse has a family
history of mental retardation or physical deformities
such as, spasticity or any other genetic disease;
(v) any other condition as may be specified by the
Central Supervisory Board;
Provided that the person conducting ultrasonography on a
pregnant woman shall keep complete record thereof in the clinic
in such manner, as may be prescribed, and any deficiency or
inaccuracy found therein shall amount to contravention of the
provisions of section 5 or section 6 unless contrary is proved by
the person conducting such ultrasonography;
(4) no person including a relative or husband of the pregnant
woman shall seek or encourage the conduct of any pre-natal
diagnostic techniques on her except for the purpose specified
in clause (2).
(5) no person including a relative or husband of a woman shall
seek or encourage the conduct of any sex-selection technique
on her or him or both.]”
Section 4(2) specifies exceptional situations in which a pre-natal diagnostic test
may be conducted to detect certain specified abnormalities. Section 4(3)
12
provides that no pre-natal diagnostic test shall be used or conducted unless the
person qualified to do so, is satisfied for reasons to be recorded in writing that
specific conditions (which have been laid down) are fulfilled. Section 5(2)
contains a prohibition on the disclosure to a pregnant woman or to a relative of
the sex of the foetus. Section 6 contains a prohibition on the determination of
sex and on sex selection.
9 Prima facie, these provisions indicate that Parliament has conferred upon
the Central government rule making authority to specify minimum qualification
for persons to be employed at genetic counselling centres, laboratories and
clinics. Specification of qualifications, in our view, should be read in a purposive
sense which will fulfil the object of the law. Even on a plain and natural
construction of the words used by Parliament, specification of qualifications
must necessarily comprehend the power to prescribe training. The rationale for
this is that the training would sensitize the person concerned to the salutary
object and purpose of the legislation which has been enacted by Parliament to
deal with a serious social evil and be conscious of the misuse of sex-selection
tests. Pre-natal diagnostic procedures are susceptible to grave misuse.
10 Parliament which has the unquestioned authority and legislative
competence to frame the law considered it necessary to empower the Central
government to frame rules to govern the qualifications of persons employed in
13
genetic counselling centres, laboratories and clinics. The wisdom of the
legislature in adopting the policy cannot be substituted by the court in the
exercise of the power of judicial review. Prima facie the judgment of the Delhi
High Court has trenched upon an area of legislative policy. Judicial review
cannot extend to reappreciating the efficacy of a legislative policy adopted in a
law which has been enacted by the competent legislature. Both the Indian
Medical Council Act, 1956 and the PCPNDT Act are enacted by Parliament.
Parliament has the legislative competence to do so. The Training Rules 2014
were made by the Central Government in exercise of the power conferred by
Parliament. Prima facie, the rules are neither ultra vires the parent legislation
nor do they suffer from manifest arbitrariness.
11 For the reasons that we have indicated, we are of the view that the
judgment of the Delhi High Court needs to be stayed during the pendency of
these proceedings. The judgment of the High Court squarely impinges upon the
directions issued by this Court in Voluntary Health Association of Punjab.
We direct in consequence that the judgment of this Court in Voluntary Health
Association of Punjab shall be strictly enforced by all states and union
territories untrammelled by any order of any High Court or any other court.
14
12 Pending final disposal, there shall be a stay of the operation of the
judgment and order of the Delhi High Court dated 17 February 2016. The
interlocutory applications are disposed of accordingly.
.............................................CJI
[DIPAK MISRA]
.................................................J
[A M KHANWILKAR]
...…............................................J
[Dr D Y CHANDRACHUD]
New Delhi;
March 14, 2018.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
I.A Nos. 13-15 of 2017
IN
SPECIAL LEAVE PETITION (C) Nos. 16657-16659 OF 2016
UNION OF INDIA ..Petitioner
VERSUS
INDIAN RADIOLOGICAL AND IMAGING ..Respondents
ASSOCIATION AND ORS. ETC. ETC.
O R D E R
1 We have heard learned counsel for the contesting parties and considered
the written submissions tendered, for the purpose of evaluating the grant of
interim relief.
2
2 In Voluntary Health Association of Punjab v Union of India1
, this Court
by a judgment dated 8 November 2016 issued comprehensive directions for the
purpose of effective implementation of the provisions of the Pre-conception and
Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 19942
. The
directions issued by this Court are extracted below:
“33. Keeping in view the deliberations made from time to time and
regard being had to the purpose of the Act and the far reaching
impact of the problem, we think it appropriate to issue the
following directions in addition to the directions issued in the
earlier order:-
(a) All the States and the Union Territories in India shall maintain
a centralized database of civil registration records from all
registration units so that information can be made available
from the website regarding the number of boys and girls being
born.
(b) The information that shall be displayed on the website shall
contain the birth information for each District, Municipality,
Corporation or Gram Panchayat so that a visual comparison of
boys and girls born can be immediately seen.
(c) The statutory authorities if not constituted as envisaged under
the Act shall be constituted forthwith and the competent
authorities shall take steps for the reconstitution of the
statutory bodies so that they can become immediately
functional after expiry of the term. That apart, they shall meet
regularly so that the provisions of the Act can be implemented
in reality and the effectiveness of the legislation is felt and
realized in the society.
(d) The provisions contained in Sections 22 and 23 shall be strictly
adhered to. Section 23(2) shall be duly complied with and it
shall be reported by the authorities so that the State Medical
Council takes necessary action after the intimation is given
under the said provision. The Appropriate Authorities who have
been appointed under Section 17(1) and 17(2) shall be
imparted periodical training to carry out the functions as
required under various provisions of the Act.
(e) If there has been violation of any of the provisions of the Act or
the Rules, proper action has to be taken by the authorities
1 Writ Petition (c) No. 349 of 2006
2 PCPNDT Act
3
under the Act so that the legally inapposite acts are
immediately curbed.
(f) The Courts which deal with the complaints under the Act shall
be fast tracked and the concerned High Courts shall issue
appropriate directions in that regard.
(g) The judicial officers who are to deal with these cases under the
Act shall be periodically imparted training in the Judicial
Academies or Training Institutes, as the case may be, so that
they can be sensitive and develop the requisite sensitivity as
projected in the objects and reasons of the Act and its various
provisions and in view of the need of the society.
(h) The Director of Prosecution or, if the said post is not there, the
Legal Remembrancer or the Law Secretary shall take stock of
things with regard to the lodging of prosecution so that the
purpose of the Act is subserved.
(I) The Courts that deal with the complaints under the Act shall
deal with the matters in promptitude and submit the quarterly
report to the High Courts through the concerned Sessions and
District Judge.
(j) The learned Chief Justices of each of the High Courts in the
country are requested to constitute a Committee of three
Judges that can periodically oversee the progress of the cases.
(k) The awareness campaigns with regard to the provisions of the
Act as well as the social awareness shall be undertaken as per
the direction No.9.8 in the order dated March 4, 2013 passed
in Voluntary Health Association of Punjab (supra).
(l) The State Legal Services Authorities of the States shall give
emphasis on this campaign during the spread of legal aid and
involve the para-legal volunteers.
(m) The Union of India and the States shall see to it that
appropriate directions are issued to the authorities of All India
Radio and Doordarshan functioning in various States to give
wide publicity pertaining to the saving of the girl child and the
grave dangers the society shall face because of female
foeticide.
(n) All the appropriate authorities including the States and districts
notified under the Act shall submit quarterly progress report to
the Government of India through the State Government and
maintain Form H for keeping the information of all registrations
readily available as per sub-rule 6 of Rule 18A of the Rules.
(o) The States and Union Territories shall implement the Preconception
and Pre-natal Diagnostic Techniques (Prohibition
of Sex Selection) (Six Months Training) Rules, 2014 forthwith
4
considering that the training provided therein is imperative for
realising the objects and purpose of this Act.
(p) As the Union of India and some States framed incentive
schemes for the girl child, the States that have not framed such
schemes, may introduce such schemes.”(Emphasis supplied)
3 The PCPNDT Act was enacted by Parliament, as its Preamble indicates,
to prohibit sex-selection, and to regulate pre-natal diagnostic techniques so as
to prevent their misuse for sex determination. The Preamble reads thus:
“An Act to provide for the regulation of the use of pre-natal
diagnostic techniques for the purpose of detecting genetic or
metabolic disorders or chromosomal abnormalities or certain
congenital malformations or sex linked disorders and for the
prevention of the misuse of such techniques for the purpose of
pre-natal sex determination leading to female foeticide; and,
for matters connected there with or incidental thereto.”
4 The intent of Parliament in enacting the law is clarified in the Statement
of Objects and Reasons which accompanied the introduction of the Bill. Insofar
as it is material to the present controversy, the Statement of Objects and
Reasons reads thus:
“Introduction:
In the recent past Pre-natal Diagnostic Centres sprang up in
the urban areas of the country using pre-natal diagnostic
techniques for determination of sex of the foetus. Such centres
became very popular and their growth was tremendous as the
female child is not welcomed with open arms in most of the
Indian families. The result was that such centres became
centres of female foeticide. Such abuse of the technique is
against the female sex and affects the dignity and status of
women. Various Organisation working for the welfare and uplift
of the women raised their heads against such an abuse.”
Statement of Objects and Reasons
It is proposed to prohibit pre-natal diagnostic techniques for
determination of sex of the foetus leading to female foeticide.
5
Such abuse of techniques is determination against the female
sex and affects the dignity and status of women. A legislation
is required to regulate the use of such techniques and to
provide deterrent punishment to stop such inhuman act.
The Bill, inter alia provides for:-
(i) prohibition of the misuse of pre-natal diagnostic techniques for
determination of sex of foetus, leading to female foeticide;
(ii) prohibition of advertisement of pre-natal diagnostic techniques
for detection or determination of sex;
(iii) permission and regulation of the use of pre-natal diagnostic
techniques for the purpose of detection of specific genetic
abnormalities or disorders;
(iv) permitting the use of such techniques only under certain
conditions by the registered institutions; and
(v) punishment for violation of the provisions of the proposed
legislation.
2. The Bill seeks to achieve the above objectives.”
5 The comprehensive directions issued by this Court in its decision in
Voluntary Health Association of Punjab (Supra) must be read as integral to
the enforcement of a law which has been enacted by Parliament to curb a grave
social evil and to render the statutory provisions truly effective to curb the
mischief which was sought to be addressed by enacting the law. More
specifically, in its judgment dated 8 November 2016, this Court has required the
states and the Union territories to implement the Pre-conception and Pre-natal
Diagnostic Techniques (Prohibition of Sex Selection) (Six Months Training)
Rules, 2014 forthwith. The decision explains that the provision for training
required under the above subordinate legislation, is imperative to realise the
objects and purposes of the Act.
6
6 The impact of the directions which have been issued by this Court is
negated by a judgment rendered by a Division Bench of the Delhi High Court
on 17 February 2016 in a batch of cases including Indian Radiological and
Imaging Association (IRIA) v Union of India3
, Indian Medical Association v
Union of India4 and Sonological Society of India v Union of India5
. Before
the Delhi High Court, there was a challenge to the provisions of Rule 3(3)(1)(b)
of the PCPNDT Rules,1996 and Rule 6 of the Six Months Training Rules as
amended by a notification dated 9 January 2014. Rule 3.3(1)(b), which was in
challenge reads as follows:
“3.3(1) Any person having adequate space and being or
employing….
(a)…
(b)…a Sonologist, Imaging Specialist, Radiologist or
Registered Medical Practitioner having Post Graduate degree
or diploma or six months training duly imparted in the manner
prescribed in the “the Pre-conception and Pre-natal Diagnostic
Techniques (Prohibition of Sex Selection) (Six Months
Training) Rules, 2014.”
Rule 6 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition
of Sex Selection) (Six Months Training) Rules, 2014 is in the following terms:
“6. Eligibility for training.-
(1)Any registered medical practitioner shall be eligible for
undertaking the said six months training.
(2) The existing registered medical practitioners, who are
conducting ultrasound procedures in a Genetic Clinic or
Ultrasound Clinic or Imaging Centre on the basis of one year
experience or six months training are exempted from
undertaking the said training provided they are able to qualify
the competency based assessment specified in Schedule II
and in case of failure to clear the said competency based
exam, they shall be required to undertake the complete six
3 Writ Petition (C) No. 6968 of 2011
4 Writ Petition (C) No. 2721 of 2014
5 Writ Petition (C) No. 3184 of 2014
7
months training, as provided under these rules, for the purpose
of renewal of registrations.”
Rule 6(2) provides for an exemption to existing registered medical practitioners
conducting ultrasound procedures in a genetic or ultrasound clinic or imaging
centre subject to qualifying in the competency based assessment.
7 The Delhi High Court has inter alia held that it was unable to find any
provision in the PCPNDT Act empowering any of the bodies constituted under
the law or even the Central government to prescribe qualifications for practicing
medicine with the aid of an ultrasound imaging equipment or to prescribe the
nature and content of the curriculum or duration of the qualification. While
disposing of the batch of writ petitions, the Delhi High Court has issued the
following directions:
(i) “that Section 2(p) of the PNDT Act defining a
Sonologist or Imaging Specialist, is bad to the extent it
includes persons possessing a postgraduate
qualification in ultrasonography or imaging techniques
– because there is no such qualification recognized by
MCI and the PNDT Act does not empower the statutory
bodies constituted thereunder or the Central
Government to devise and coin new qualification;
(ii) We hold that all places including vehicles where
ultrasound machine or imaging machine or scanner or
other equipment capable of determining sex of the
foetus or has the potential of detection of sex during
pregnancy or selection of sex before conception,
require registration under the Act;
(iii) However, if the person seeking registration (a) makes
a declaration in the form to be prescribed by the Central
Supervisory Board to the effect that the said machine
8
or equipment is not intended for conducting pre-natal
diagnostic procedures; (b) gives an undertaking to not
use or allow the use of the same for pre-natal
diagnostic procedures; and, (c) has a “silent observer”
or any other equipment installed on the ultrasound
machines, as may be prescribed by the Central
Supervisory Board, capable of storing images of each
sonography tests done therewith, such person would
be exempt from complying with the provisions of the
Act and the Rules with respect to Genetic Clinics,
Genetic Laboratory or Genetic Counselling Centres;
(iv) If however for any technical reasons, the Central
Supervisory Board is of the view that such “silent
observer” cannot be installed or would not serve the
purpose, then the Central Supervisory Board would
prescribe other conditions which such registrant would
require to fulfil, to remain exempt as aforesaid;
(v) However, such registrants would otherwise remain
bound by the prohibitory and penal provisions of the
Act and would further remain liable to give inspection
of the “silent observer” or other such equipment and
their places, from time to time and in such manner as
may be prescribed by the Central Supervisory Board;
and
(vi) Rule 3(3)(1)(b) of the PNDT Rules (as it stands after
the amendment with effect from 9th January, 2014) is
ultra vires the PNDT Act to the extent it requires a
person desirous of setting up a Genetic Clinic /
Ultrasound Clinic / Imaging Centre to undergo six
months training imparted in the manner prescribed in
the Six Months Training Rules.”
8 Prima facie, the High Court has erred in its finding that there is an
absence of statutory power. Sub-section 1 of Section 32 of the PCPNDT Act
confers rule making power upon Central Government for “carrying out the
provisions of the Act”. Illustratively, sub Section 2 of Section 32 stipulates that
the rules may provide for:
9
“(i) the minimum qualifications for persons employed at a
registered Genetic Counselling Centre, Genetic Laboratory or
Genetic Clinic under clause (1) of section 3.”
The above provision refers to minimum qualifications required of persons
employed at registered genetic counselling centres, genetic laboratories or
genetic clinics under Section 3(2). Hence, it would be necessary to understand
the import of Section 3 which reads thus:
“3. Regulation of Genetic Counselling Centres, Genetic
Laboratories and Genetic Clinics.-
On and from the commencement of this Act,--
(1) no Genetic Counselling Centre, Genetic Laboratory or
Genetic Clinic unless registered under this Act, shall conduct
or associate with, or help in, conducting activities relating to
pre-natal diagnostic techniques;
(2) no Genetic Counselling Centre, Genetic Laboratory or
Genetic Clinic shall employ or cause to be employed any
person who does not possess the prescribed qualifications;
(3) no medical geneticist, gynaecologist, paediatrician,
registered medical practitioner or any other person shall
conduct or cause to be conducted or aid in conducting by
himself or through any other person, any pre-natal diagnostic
techniques at a place other than a place registered under this
Act.”
The expression ‘genetic counselling centre’ has been defined in Section 2(c) as
follows:
“(c) "Genetic Counselling Centre" means an institute, hospital,
nursing home or any place, by whatever name called, which
provides for genetic counselling to patients”
The expression ‘genetic laboratory’ is defined in Section 2(e) as follows:
(e) "Genetic Laboratory" means a laboratory and includes a
place where facilities are provided for conducting analysis or
tests of samples received from Genetic Clinic for pre-natal
diagnostic test”
10
The expression ‘genetic clinic’ is defined in Section 2(d) as follows:
“(d) "Genetic Clinic" means a clinic, institute, hospital, nursing
home or any place, by whatever name called, which is used for
conducting pre-natal diagnostic procedures”
Under Section 2(d), ‘genetic clinic’ is defined with reference to the place which
is used for conducting pre-natal diagnostic procedures. ‘Genetic laboratory’ in
Section 2(e) includes a place where facilities are provided for conducting
analysis or tests of samples received from a genetic clinic for a pre-natal
diagnostic test.
The expression ‘pre-natal diagnostic procedures’ is defined in Section 2(i) as
follows:
“(i) "pre-natal diagnostic procedures" means all gynaecological
or obstetrical or medical procedures such as ultrasonography
foetoscopy, taking or removing samples of amniotic fluid,
chorionic villi, blood or any tissue of a pregnant woman for
being sent to a Genetic Laboratory or Genetic Clinic for
conducting pre-natal diagnostic test”
Both Sections 2(i) and Section 2(k) contain a specific reference to
ultrasonography. The expression ‘sonologist or imaging specialist’ is defined in
Section 2(p) as follows:
“(p) sonologist or imaging specialist” means a person who
possesses any one of the medical qualifications recognised
under the Indian Medical Council Act, 1956 (105 of 1956) or
who possesses a post-graduate qualification in
ultrasonography or imaging techniques or radiology”
Section 4 provides thus:
“4. Regulation of pre-natal diagnostic techniques.- On and from
the commencement of this Act,--
11
(1) no place including a registered Genetic Counselling Centre
or Genetic Laboratory or Genetic Clinic shall be used or caused
to be used by any person for conducting pre-natal diagnostic
techniques except for the purposes specified in clause (2) and
after satisfying any of the conditions specified in clause (3);
(2) no pre-natal diagnostic techniques shall be conducted
except for the purposes of detection of any of the following
abnormalities, namely:--
(i) chromosomal abnormalities;
(ii) genetic metabolic diseases;
(iii) haemoglobinopathies;
(iv) sex-linked genetic diseases;
(v) congenital anomalies;
(vi) any other abnormalities or diseases as may be
specified by the Central Supervisory Board;
[(3) no pre-natal diagnostic techniques shall be used or
conducted unless the person qualified to do so is satisfied that
any of the following conditions are fulfilled, namely:--
(i) age of the pregnant woman is above thirty-five
years;
(ii) the pregnant woman has undergone two or more
spontaneous abortions or foetal loss;
(iii) the pregnant woman had been exposed to
potentially teratogenic agents such as drugs, radiation,
infection or chemicals;
(iv) the pregnant woman or her spouse has a family
history of mental retardation or physical deformities
such as, spasticity or any other genetic disease;
(v) any other condition as may be specified by the
Central Supervisory Board;
Provided that the person conducting ultrasonography on a
pregnant woman shall keep complete record thereof in the clinic
in such manner, as may be prescribed, and any deficiency or
inaccuracy found therein shall amount to contravention of the
provisions of section 5 or section 6 unless contrary is proved by
the person conducting such ultrasonography;
(4) no person including a relative or husband of the pregnant
woman shall seek or encourage the conduct of any pre-natal
diagnostic techniques on her except for the purpose specified
in clause (2).
(5) no person including a relative or husband of a woman shall
seek or encourage the conduct of any sex-selection technique
on her or him or both.]”
Section 4(2) specifies exceptional situations in which a pre-natal diagnostic test
may be conducted to detect certain specified abnormalities. Section 4(3)
12
provides that no pre-natal diagnostic test shall be used or conducted unless the
person qualified to do so, is satisfied for reasons to be recorded in writing that
specific conditions (which have been laid down) are fulfilled. Section 5(2)
contains a prohibition on the disclosure to a pregnant woman or to a relative of
the sex of the foetus. Section 6 contains a prohibition on the determination of
sex and on sex selection.
9 Prima facie, these provisions indicate that Parliament has conferred upon
the Central government rule making authority to specify minimum qualification
for persons to be employed at genetic counselling centres, laboratories and
clinics. Specification of qualifications, in our view, should be read in a purposive
sense which will fulfil the object of the law. Even on a plain and natural
construction of the words used by Parliament, specification of qualifications
must necessarily comprehend the power to prescribe training. The rationale for
this is that the training would sensitize the person concerned to the salutary
object and purpose of the legislation which has been enacted by Parliament to
deal with a serious social evil and be conscious of the misuse of sex-selection
tests. Pre-natal diagnostic procedures are susceptible to grave misuse.
10 Parliament which has the unquestioned authority and legislative
competence to frame the law considered it necessary to empower the Central
government to frame rules to govern the qualifications of persons employed in
13
genetic counselling centres, laboratories and clinics. The wisdom of the
legislature in adopting the policy cannot be substituted by the court in the
exercise of the power of judicial review. Prima facie the judgment of the Delhi
High Court has trenched upon an area of legislative policy. Judicial review
cannot extend to reappreciating the efficacy of a legislative policy adopted in a
law which has been enacted by the competent legislature. Both the Indian
Medical Council Act, 1956 and the PCPNDT Act are enacted by Parliament.
Parliament has the legislative competence to do so. The Training Rules 2014
were made by the Central Government in exercise of the power conferred by
Parliament. Prima facie, the rules are neither ultra vires the parent legislation
nor do they suffer from manifest arbitrariness.
11 For the reasons that we have indicated, we are of the view that the
judgment of the Delhi High Court needs to be stayed during the pendency of
these proceedings. The judgment of the High Court squarely impinges upon the
directions issued by this Court in Voluntary Health Association of Punjab.
We direct in consequence that the judgment of this Court in Voluntary Health
Association of Punjab shall be strictly enforced by all states and union
territories untrammelled by any order of any High Court or any other court.
14
12 Pending final disposal, there shall be a stay of the operation of the
judgment and order of the Delhi High Court dated 17 February 2016. The
interlocutory applications are disposed of accordingly.
.............................................CJI
[DIPAK MISRA]
.................................................J
[A M KHANWILKAR]
...…............................................J
[Dr D Y CHANDRACHUD]
New Delhi;
March 14, 2018.
