FEDERATION OF OBSTETRICS AND GYNECOLOGICAL SOCIETIES OF INDIA (FOGSI) versus UNION OF INDIA AND OTHERS

Citation: [2019] 7 S.C.R. 12 · Decided: 03-05-2019 · Supreme Court of India · Bench: ARUN MISHRA · Disposal: Dismissed

Cited by 1 judgment(s) · cites 11 · see the full citation network in Lexace

Judgment (excerpt)

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SUPREME COURT REPORTS
[2019] 7 S.C.R.
FEDERATION OF OBSTETRICS AND GYNECOLOGICAL
SOCIETIES OF INDIA (FOGSI)
v.
UNION OF INDIA AND OTHERS
(Writ Petition (Civil) No.129 of 2017)
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) –
Constitutional validity of – The petitioner-Society contended that s.
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 u/Art.21
of the Constitution – Held: s.23 is not a stand alone section – It is
rather used in the enforcement of other provisions of the Act and
violations of s.23 are often accompanied by violations of provisions
of ss.4, 5, 6 and 18 of the Act – It provides for punishment for any
medical geneticist, gynecologist, registered medical practitioner or
a person who owns a Genetic Counselling Centre, a Genetic clinic
or a Genetic Laboratory, and renders his professional or technical
services to or at said place, whether on honorarium basis or
otherwise and contravenes any provisions of the Act, or the Rules
under it – Therefore, dilution of the provision of the Act would only
defeat the purpose of the Act to prevent female foeticide and relegate
the right to life of the girl child u/Art.21 of the Constitution, to a
mere formality – Thus, no case made out for striking down the
provisions 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,
1996 – 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 like
incomplete ‘F’ forms/clerical mistakes/record keeping in regard of
   [2019] 7 S.C.R. 12
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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 clerical
requirement, but if any information in the form is avoided, it will
result 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 has
to fulfil pre-requisites for undertaking the procedure in case the
conditions precedent for undertaking pre-natal diagnostic test is
not specifically mentioned, it would be violative of provisions
contained in s.4 – In case the indications and the information are
not furnished as provided in the Form ‘F’ it would amount that
condition precedent to undertake the test/procedure is absent – There
is no other barometer except form ‘F’ to find out why the diagnostic
test/procedure was performed – Form ‘F’ lays down the indicative
list for conducting ultra-sonography during pregnancy – Further,
Form ‘F’ being technical in nature gives the insight into the reasons
for conducting ultra-sonography and incomplete Form ‘F’ raises
the presumption of doubt against medical practitioner – Insofar as
maintaining of record is concerned, they have to maintained only
when the procedure or tests are conducted on pregnant woman or
when patient may have been advised to use pre-conception
diagnostic tools to conceive a child – The scheme of the Act makes
it evident that record keeping is meant to track/monitor and regulate
the use of technology that has potential of sex selection and sex
determination – As the entries are mandatory and sine qua non for
undertaking a test/procedure, the assertion that their fundamental
rights are being violated by not providing requisite information is
not 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 conducting
ultrasonography on a pregnant woman, is required to keep complete
record of the same in the prescribed manner and any deficiency or
inaccuracy in the same amounts to contravention of s.5 or s.6 of
the Act, unless the contrary is proved by the person conducting the
said ultrasonography – The aforementioned proviso to s.4(3) reflect

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