Supreme Court Upholds Stringent Penalties under Pre-Conception and Pre-Natal Diagnostic Techniques Act for Record-Keeping Anomalies: Federation of Obstetrics and Gynecological Societies of India vs. Union of India (2019)

LEGAL ISSUE: Whether stringent penalties for minor clerical errors in record-keeping under the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 are constitutional.

CASE TYPE: Social Welfare Legislation, Constitutional Law

Case Name: Federation of Obstetrics and Gynecological Societies of India (FOGSI) vs. Union of India and others

Judgment Date: May 03, 2019

Introduction

Date of the Judgment: May 03, 2019

Citation: (2019) INSC 447

Judges: Arun Mishra, J. and Vineet Saran, J.

Can minor errors in paperwork lead to severe penalties for doctors? The Supreme Court of India recently addressed this critical question in a case concerning the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (PC&PNDT Act). The court examined whether penalizing doctors for clerical errors in record-keeping, under the PC&PNDT Act, is constitutional. The Federation of Obstetrics and Gynecological Societies of India (FOGSI) had challenged the Act’s provisions, arguing that they unfairly equate minor errors with the grave offense of sex determination. The bench, comprising Justices Arun Mishra and Vineet Saran, delivered the judgment.

Case Background

The Federation of Obstetrics and Gynecological Societies of India (FOGSI), the apex body of obstetricians and gynecologists in India, filed a writ petition highlighting the challenges faced by its members under the PC&PNDT Act. FOGSI contended that while the Act aimed to prohibit sex determination and prevent female foeticide, its implementation often resulted in the harassment of doctors due to minor clerical errors in paperwork. According to FOGSI, even unintentional mistakes in record-keeping, such as incomplete ‘F’ forms or clerical errors, were treated on par with the actual offense of sex determination, leading to criminal cases and sealing of sonography machines. The petitioner sought the decriminalization of these anomalies, arguing that they violate Articles 14, 19(1)(g), and 21 of the Constitution of India.

Timeline

Course of Proceedings

The petitioner, FOGSI, argued that the PC&PNDT Act fails to distinguish between criminal offenses and minor paperwork anomalies. They contended that the ambiguous wording of Section 23(1) of the Act has led to the prosecution of doctors for unintentional errors, and Section 23(2), which allows the State Medical Council to suspend a doctor’s registration during the trial, violates the fundamental right to be presumed innocent under Article 21. The respondents, the Union of India and others, countered that the Act is a social welfare legislation aimed at preventing female foeticide. They emphasized the importance of maintaining proper records for the effective implementation of the Act and argued that the stringent provisions are necessary to prevent the misuse of pre-natal diagnostic techniques for sex selection.

Legal Framework

The Supreme Court examined several key provisions of the PC&PNDT Act:

• Section 3: Regulates Genetic Counselling Centres, Genetic Laboratories, and Genetic Clinics, mandating registration and adherence to prescribed qualifications.
• Section 3A: Prohibits sex selection.
• Section 3B: Prohibits the sale of ultrasound machines to unregistered entities.
• Section 4: Regulates pre-natal diagnostic techniques, specifying conditions and purposes for conducting such tests. It also mandates record-keeping by the person conducting ultrasonography, stating that “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”.
• Section 5: Requires written consent from pregnant women before conducting pre-natal diagnostic procedures and prohibits communicating the sex of the foetus.
• Section 6: Prohibits the determination of the sex of a foetus.
• Section 16A: Provides for the constitution of State Supervisory Boards.
• Section 17: Deals with the constitution of the Appropriate Authority and Advisory Committee.
• Section 20: Provides for the cancellation or suspension of registration of Genetic Counselling Centres, Genetic Laboratories, or Genetic Clinics.
• Section 21: Provides for an appeal against the order of suspension or cancellation of registration.
• Section 23: Specifies offences and penalties for contravention of the Act, including imprisonment and fines. Section 23(2) empowers the State Medical Council to suspend the registration of a doctor reported by the Appropriate Authority.
• Section 25: Prescribes penalties for contravention of the Act or rules for which no specific punishment is provided.
• Section 27: States that every offence under the Act is cognizable, non-bailable, and non-compoundable.
• Section 29: Mandates the maintenance of records for two years.
• Rule 9: Of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996, which provides for the maintenance and preservation of records, including Form ‘F’.

Arguments

Petitioner’s Submissions:

• The Act treats unequals as equals by equating minor clerical errors with the grave offense of sex determination.
• There is no gradation of offenses under the Act, leading to disproportionate punishments for minor errors.
• The presumption of innocence is violated by the suspension of medical licenses under Section 23(2) before conviction.
• The Act fails to distinguish between cases with and without mens rea (guilty intention).
• Form ‘F’ does not serve its intended purpose and errors in it do not have a direct nexus with sex selection.
• The ambiguous wording of Section 23(1) of the Act has resulted in grave miscarriage of justice.
• The suspension of medical licenses at the stage of framing of charges is highly improper and harsh.
• The competent authority should consider each case on merits with the aid of a legal advisor.
• Denial of renewal of registration of a running unit on the ground of pendency of criminal trial is illegal and harsh.
• There should not be seizure of any equipment etc. as ultrasound machines are necessary for human use.
• The provisions of Section 23(2) be read down so that suspension should not fall under Section 23(2) in the case of clerical mistakes or inadvertent technical errors/lapses.

Respondents’ Submissions:

• The Act is a social welfare legislation aimed at preventing the elimination of girls before birth.
• The implementation of the Act lies primarily with the States, who are required to enforce the law through statutory bodies.
• The Act empowers the Central Government to regulate the use of pre-natal diagnostic techniques.
• The proliferation of technology is resulting in a catastrophe in the form of female foeticide.
• It is mandatory to maintain proper records in respect of use of ultrasound machines under the Act.
• For effective implementation of the Act, a hierarchy of Appropriate Authority at State, District and Sub-District level is created.
• Ultrasonography test on a pregnant woman is considered to be an important part of a pre-natal diagnostic test.
• A deficiency or inaccuracy in maintaining records would amount to an offense.
• 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 female foetus which is in the larger public interest.
• Right to practice a profession under Article 19(1)(g) of the Constitution is not an absolute right.
• A criminal act cannot be protected under the umbrella of Article 19.
• The Appropriate Authority conducts inspection pursuant to the directions issued by this Court in Centre for Enquiry into Health & Allied Themes (CEHAT) v. Union of India, (2003) 8 SCC 398.
• Non-maintenance of records or incomplete records may provide substantial evidence towards the commission of offense.
• The purpose of Form ‘F’ is to maintain personal and medical record of the patient visiting the Pre-Natal Diagnostic Clinic.
• Clerical errors in Form ‘F’ fall under Section 4 of the Act and any deficiency or inaccuracy found therein shall amount to contravention of the provisions of Section 5 or 6 of the Act unless contrary is proved.
• Every aggrieved person, who suffered from any procedural irregularity, can avail legal remedy as provided under Section 21 of the Act and Rule 19 of the Rules.

Innovativeness of the Argument:
The petitioner innovatively argued that the Act fails to classify the offense of actual sex determination vis-à-vis clerical error in maintenance of record, thus treating unequals as equals. They also argued on the presumption of innocence and that the suspension under Section 23(2) is draconian. The respondents countered by emphasizing the social welfare objective of the Act and the importance of record-keeping in preventing female foeticide.

Issues Framed by the Supreme Court

The Supreme Court framed the following issues:

1. Whether the provisions of the PC&PNDT Act, specifically Sections 23(1) and 23(2), are violative of Articles 14, 19(1)(g), and 21 of the Constitution of India.
2. Whether the Act treats unequals as equals by equating minor clerical errors in record-keeping with the offense of sex determination.
3. Whether the suspension of medical licenses under Section 23(2) before conviction violates the fundamental right to be presumed innocent.
4. Whether the requirement of maintaining detailed records, including Form ‘F’, is a mere clerical requirement or a substantive part of the Act.

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

• Uttar Pradesh Power Corporation Ltd. vs. Ayodhya Prasad Mishra, (2008) 10 SCC 139: Relied upon by the petitioner to argue that unequals cannot be treated equally.
• Arun Bhandari v. State of U.P., (2013) 2 SCC 801: Cited by the petitioner to argue that mens rea must be established and not presumed.
• Centre for Enquiry into Health & Allied Themes (CEHAT) v. Union of India, (2003) 8 SCC 398: Referred to by the respondents to show that inspections are conducted as per court directions.
• Suo Motu v. State of Gujarat, (2009) 1 GLR 64 (High Court of Gujarat): Cited by the respondents to emphasize the importance of maintaining proper records.
• S.K. Gupta v. Union of India (High Court of Rajasthan): Cited by the respondents to highlight the right to life of female infants.
• Voluntary Health Association of Punjab v. Union of India, (2016) 10 SCC 265: Referred to by the court to emphasize proper maintenance of records.
• Centre for Enquiry into Health and Allied Themes (CEHAT) v. Union of India, (2001) 5 SCC 577: Cited to show the importance of implementation of the Act.
• Voluntary Health Association of Punjab v. Union of India, (2013) 4 SCC 1: Referred to for the directions regarding maintenance of records.
• Hamdard Dawakhana v. The Union of India, AIR 1960 SC 554: Cited to lay down the principles for adjudicating the constitutionality of a provision.
• Namit Sharma v. Union of India, (2013) 1 SCC 745: Cited to emphasize the presumption of constitutionality of an enactment.
• Gian Kaur v. State of Punjab, (1996) 2 SCC 648: Cited to discuss the ambit of Article 21.
• Subramanian Swamy v. Union of India, (2016) 7 SCC 221: Cited to discuss the concept of reasonable restriction.
• Raj Bokaria v. Medical Council of India (W.P. (C) No.795 of 2010) (High Court of Delhi): Cited to show the importance of maintaining records under the MTP Act.
• P. Rathinam v. Union of India, (1994) 3 SCC 394: Cited to show that law has many promises to keep.
• State of Uttar Pradesh v. Wasif Haider, (2019) 2 SCC 303: Cited to emphasize that an offense has to be proved beyond reasonable doubt.
• Shreya Singhal v. Union of India, (2015) 5 SCC 1: Cited to discuss the concept of vagueness in a penal law.
• Nikesh Tarachand Shah v. Union of India, (2018) 11 SCC 1: Cited to discuss the validity of conditions for grant of bail.
• Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002: Referred to for the mandatory requirement for doctors to maintain records.
• Pharmacy Practice Regulations, 2015: Referred to for the mandatory requirement for pharmacists to maintain records.
• Transplantation of Human Organs and Tissues Act, 1994: Referred to for provisions with respect to maintenance of proper records.
• Medical Termination of Pregnancy Act, 1971: Referred to for the obligation on medical professionals to maintain proper records.

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• Uttar Pradesh Power Corporation Ltd. vs. Ayodhya Prasad Mishra, (2008) 10 SCC 139*: Distinguished, as the court held that unequals are not being treated equally in this case.
• Arun Bhandari v. State of U.P., (2013) 2 SCC 801*: Distinguished, as the court held that the act of not filling the form is dishonest and intentional.
• Centre for Enquiry into Health & Allied Themes (CEHAT) v. Union of India, (2003) 8 SCC 398*: Referred to, to show that inspections are conducted as per court directions.
• Suo Motu v. State of Gujarat, (2009) 1 GLR 64*: Referred to, to emphasize the importance of maintaining proper records.
• S.K. Gupta v. Union of India*: Referred to, to highlight the right to life of female infants.
• Voluntary Health Association of Punjab v. Union of India, (2016) 10 SCC 265*: Referred to, to emphasize proper maintenance of records.
• Centre for Enquiry into Health and Allied Themes (CEHAT) v. Union of India, (2001) 5 SCC 577*: Referred to, to show the importance of implementation of the Act.
• Voluntary Health Association of Punjab v. Union of India, (2013) 4 SCC 1*: Referred to, for the directions regarding maintenance of records.
• Hamdard Dawakhana v. The Union of India, AIR 1960 SC 554*: Referred to, to lay down the principles for adjudicating the constitutionality of a provision.
• Namit Sharma v. Union of India, (2013) 1 SCC 745*: Referred to, to emphasize the presumption of constitutionality of an enactment.
• Gian Kaur v. State of Punjab, (1996) 2 SCC 648*: Referred to, to discuss the ambit of Article 21.
• Subramanian Swamy v. Union of India, (2016) 7 SCC 221*: Referred to, to discuss the concept of reasonable restriction.
• Raj Bokaria v. Medical Council of India (W.P. (C) No.795 of 2010)*: Referred to, to show the importance of maintaining records under the MTP Act.
• P. Rathinam v. Union of India, (1994) 3 SCC 394*: Referred to, to show that law has many promises to keep.
• State of Uttar Pradesh v. Wasif Haider, (2019) 2 SCC 303*: Referred to, to emphasize that an offense has to be proved beyond reasonable doubt.
• Shreya Singhal v. Unionv. Union of India, (2015) 5 SCC 1*: Referred to, to discuss the concept of vagueness in a penal law.
• Nikesh Tarachand Shah v. Union of India, (2018) 11 SCC 1*: Referred to, to discuss the validity of conditions for grant of bail.
• Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002*: Referred to, for the mandatory requirement for doctors to maintain records.
• Pharmacy Practice Regulations, 2015*: Referred to, for the mandatory requirement for pharmacists to maintain records.
• Transplantation of Human Organs and Tissues Act, 1994*: Referred to, for provisions with respect to maintenance of proper records.
• Medical Termination of Pregnancy Act, 1971*: Referred to, for the obligation on medical professionals to maintain proper records.

The Supreme Court upheld the constitutional validity of the PC&PNDT Act and its stringent penal provisions. The court emphasized that the Act is a social welfare legislation aimed at preventing female foeticide and that the maintenance of proper records is crucial for its effective implementation. The court held that the provisions of the Act are not vague and are clear to a person of ordinary intelligence. It also held that the suspension of medical licenses under Section 23(2) before conviction is not violative of the fundamental right to be presumed innocent, as it is a necessary step to prevent further mischief. The court rejected the argument that minor clerical errors should be treated differently from the offense of sex determination, stating that non-maintenance of records is a substantive violation of the Act.

Ratio Decidendi

The ratio decidendi of the judgment is that the stringent penal provisions of the PC&PNDT Act, including the penalties for record-keeping anomalies, are constitutionally valid. The court held that the Act is a social welfare legislation aimed at preventing female foeticide, and the maintenance of proper records is essential for its effective implementation. The court emphasized that non-compliance with record-keeping requirements is not a mere clerical error but a substantive violation of the Act, which can lead to the commission of the offense of sex determination. Therefore, stringent penalties are necessary to deter such violations and to achieve the objectives of the Act.

Obiter Dicta

The court made several obiter dicta:

• The court observed that the PC&PNDT Act is a social welfare legislation aimed at preventing the elimination of girls before birth, and it is the duty of the state to ensure its effective implementation.
• The court emphasized the importance of maintaining proper records in respect of the use of ultrasound machines under the Act and stated that any deficiency or inaccuracy in maintaining records would amount to an offense.
• The court noted that the purpose of Form ‘F’ is to maintain a personal and medical record of the patient visiting the Pre-Natal Diagnostic Clinic and that clerical errors in Form ‘F’ fall under Section 4 of the Act.
• The court observed that the suspension of medical licenses on the framing of charges is warranted to prevent mischief and is a step-in-aid to further the intendment of the Act.
• The court highlighted that every aggrieved person who suffered from any procedural irregularity can avail legal remedy as provided under Section 21 of the Act and Rule 19 of the Rules.

Conclusion

The Supreme Court’s judgment in Federation of Obstetrics and Gynecological Societies of India vs. Union of India (2019) reinforces the importance of strict adherence to the provisions of the PC&PNDT Act, particularly concerning record-keeping. The court’s decision underscores that the Act is not merely a bureaucratic exercise but a crucial tool in combating female foeticide. The judgment clarifies that minor errors in record-keeping are not to be taken lightly and can attract severe penalties. The ruling also serves as a reminder to medical professionals to maintain accurate and complete records, as non-compliance can lead to criminal prosecution and suspension of licenses. The judgment reaffirms the state’s commitment to preventing sex selection and protecting the rights of the girl child.