- 7 अक्तूबर 2015
Friday, April 15, 2016
क्या इस हार के बाद भी जीत है?
क्या इस हार के बाद भी जीत है?
Image copyrightMitu khuranaभारत की पहली महिला जिसने अपने पति और उनके रिश्तेदारों के ख़िलाफ़ भ्रूण हत्या के लिए दबाव बनाने का आरोप लगाया था, वो निचली अदालत में मुक़दमा हार गईं हैं.
लेकिन डॉक्टर मीतू खुराना का कहना है कि उन्होंने हिम्मत नहीं हारी है और वो ताज़ा आदेश को ऊपरी अदालत में चुनौती देंगी.
अपने पति और उनके परिवार के ख़िलाफ़ सात साल चली क़ानूनी लड़ाई को हारने के बाद डॉक्टर मीतू खुराना सदमे में हैं.
जब हम उनसे मिलने दिल्ली के द्वारका स्थित उनके वकील के दफ़्तर पहुंचे तो उनके चेहरे पर उदासी साफ़ झलक रही थी. वो मोटी फ़ाइलों के पन्ने पलट रहीं थीं.
उन्होंने कहा, “ये आदेश उन सभी महिलाओं के लिए झटका है जो इंसाफ़ की उम्मीद कर रही थीं. अब मेरी लड़ाई लंबी और बड़ी हो गई है.”
पढ़ें विस्तार से
Image copyrightMitu Khuranaउनका आरोप है कि जब उनके पति और परिवार को पता चला कि होने वाला बच्ची लड़की है तो उन्होंने मीतू पर गर्भपात के लिए दबाव बनाना शुरू कर दिया.
भारत में प्री नेटल डायगनोस्टिक टेकनीक या पीएनडीटी क़ानून, 1994 के अंतर्गत भ्रूण के लिंग की पहचान जुर्म है, हालांकि एक अनुमान के अनुसार भारत में हर साल पांच लाख से ज़्यादा कन्या भ्रूण की हत्या कर दी जाती है. भारतीय समाज पर इसके असर को लेकर लोगों में भारी चिंता है.
ये ग़ैर-क़ानूनी जांच देश भर के 45,000 से ज़्यादा रजिस्टर्ड और लाखों ग़ैर-रजिस्टर्ड अल्ट्रासाउंड क्लिनिकों में की जाती है.
Image copyrightRAVINDER SINGH ROBINडॉक्टर मीतू खुराना का आरोप है कि उन पर गर्भपात के लिए दबाव डाला गया, उन्हें मारा गया और उन्हें खाना भी नहीं दिया गया. उनके पति डॉक्टर कमल खुराना सभी आरोपों से इनकार करते हैं.
इस मामले के कारण मीतू खुराना को राष्ट्रीय और अंतरराष्ट्रीय प्रसिद्धि मिली. वो महिला भ्रूण हत्या के ख़िलाफ़ एक महत्वपूर्ण आवाज़ बनकर उभरीं.
आमिर ख़ान के टीवी कार्यक्रम 'सत्यमेव जयते' में भी वो शामिल हुईं.
लेकिन इस हफ़्ते दिल्ली की एक निचली अदालत ने उनके सभी आरोपों को ख़ारिज कर दिया.
परिवार का दबाव
Image copyrightTHINKSTOCKमीतू खुराना के वकील अमरनाथ अग्रवाल का कहना है कि वो मामले को ऊँची अदालत में ले जाएंगे.
कार्यकर्ताओं का कहना है कि किसी भी महिला के लिए ये साबित करना टेढ़ी खीर है कि उनके पति के परिवार ने महिला पर कन्या भ्रूण हत्या के लिए दबाव डाला.
उधर पेशे से हड्डी के डॉक्टर कमल खुराना कहते हैं कि अदालत ने न्याय किया है.
कमल खुराना के वकील पीएस सिंगल के मुताबिक़ इस आदेश से स्पष्ट है कि मीतू खुराना ने पति, और पति के रिश्तेदारों के ख़िलाफ़ मामला बनाने के लिए क़ानून का दुरुपयोग किया.
सोशल मीडिया पर कई लोगों ने मीतू खुराना का पक्ष लिया है. फ़ेसबुक पर 'आई स्टैंड मीतू खुराना' का पेज सामने आया है.
जयपुर गोल्डन हस्पताल के विचार जानने की कोशिश की गई लेकिन किसी भी अधिकारी से संपर्क नहीं हो पाया.
मामला
उनका आरोप है कि शादी के बाद से ही उन पर दहेज के लिए दबाव पड़ने लगा था लेकिन जब उनके गर्भवती होने का पता चला तो उन पर भ्रूण का लिंग पता लगाने के लिए दबाव पड़ने लगा.
वर्ष 2005 में एक दिन उनके पेट की अल्ट्रासाउंड के बहाने जयपुर गोल्डन अस्पताल ले जाया गया जहां कथित तौर पर ग़ैर-क़ानूनी तौर पर भ्रूण के लिंग की जांच की गई.
वो कहती हैं, “मुझ पर गर्भपात के लिए भारी दबाव था. मेरे साथ हिंसा की गई. मैंने कहा कि लड़कियां पुरुषों से किसी मामले में कम नहीं लेकिन किसी ने मेरी नहीं सुनी.”
11 अगस्त 2005 को गुड्डू और परी जुड़वा बच्चों का जन्म हुआ.
मीतू खुराना का आरोप है कि बच्चियों के साथ बुरा व्यवहार किया गया और उनके साथ हिंसा में बढ़ोत्तरी आ गई.
मीतू खुराना कहती हैं कि 2008 में उनके हाथ एक ऐसा दस्तावेज़ आया जो इस बात का सुबूत था कि अस्पताल में भ्रूण के लिंग की जांच की गई, लेकिन डॉक्टर खुराना इस आरोप से इनकार करते हैं.
वो कहते हैं, “इस केस ने मुझे भारी नुक़सान पहुंचाया है. मेरे पिता की मौत हो चुकी है. मेरा करियर मुसीबत में है. मैं अपने बच्चों से नहीं मिल पा रहा हूं. मेरा परिवार ख़त्म हो गया है. मुझे समझ नहीं आ रहा है कि वो (मीतू) क्या चाहती हैं.”
आसान नहीं
वो कहते हैं, “हमें न्याय की उम्मीद थी लेकिन ये याद रखने की ज़रूरत है कि ऐसे मामलों में पीड़ित व्यक्ति के सामने महिला विरोधी व्यवस्था खड़ी रहती है. जो बात महत्वपूर्ण है वो ये कि उन्होंने अभी तक हिम्मत नहीं हारी है.”
साबू जॉर्ज के मुताबिक़, “ये इस देश की सच्चाई है जहां भ्रूण की जांच को अपराध के तौर पर नहीं देखा जाता. और ये डरावनी बात है.''
संजय पारिख एक वकील हैं और वो सालों से देश भर में इस क़ानून के क्रियान्वयन की मांग करते रहे हैं.
वो कहते हैं, "भ्रूण जांच की समस्या अमीरों, पढ़े लिखों में ज़्यादा है, न कि ग़रीबों, आदिवासियों में.”
दिल्ली से लगे पंजाब और हरियाणा ऐसे दो राज्य हैं जहां कन्या भ्रूण हत्या की समस्या सबसे भयावह है. और आज हालत ये है कि उन दो राज्यों में शादी के लिए पुरुषों को राज्यों के बाहर या फिर देश के बाहर का रुख़ करना पड़ रहा है.
(बीबीसी हिन्दी के एंड्रॉएड ऐप के लिए आप यहां क्लिक कर सकते हैं. आप हमेंफ़ेसबुक और ट्विटर पर फ़ॉलो भी कर सकते हैं.)
Law to curb female foeticide turns into farce
Law to curb female foeticide turns into farce
Lawyers and activists have unanimously demanded deterrent punishment for the guilty while also fixing the accountability of the competent authorities handling the cases of sex detection.
Blame it on unaccountability of authorities, the PNDT Act - which was enacted to curb female foeticide and arrest the declining gender ratio in India - has turned into a farce.
In nearly two decades since the law came into force, not a single convict has been imprisoned in the Capital. Various trial courts in Delhi have shied away from awarding the maximum punishment to offenders and instead let off the convicts with a nominal fine of Rs 1,000. The PNDT Act provides for a maximum punishment of three-year jail term and a penalty of up to Rs 50,000.
Despite rulings by the Supreme Court and various high courts to make the existing law a deterrent, the courts have shown their reluctance in sending the offenders to jail. In many cases, the convicts have been let off with a mere warning by the judge, prompting reaction from the legal fraternity as well as social and academic activists. Lawyers and activists have unanimously demanded deterrent punishment for the guilty while also fixing the accountability of the competent authorities handling the cases of sex detection.
Information provided by Delhi government's health department in response to an RTI application suggests that 31 out of 52 cases under PNDT Act are pending in various Delhi courts. However, in the remaining 21 cases disposed of by courts, no convict has been awarded jail term since 1996, when the Act was enforced. RTI applicant and activist Dr Mitu Khurana said the police and state government were equally responsible for making the law a "toothless tiger". "It is apparent that the prosecuting agencies are not taking these cases seriously and the fact is well known to offenders. There is no fear of law as it has failed to be a deterrent," Khurana said. In a majority of the cases disposed of by the trial courts, the prosecuting agencies chose not to appeal before the higher courts and thus adding to the plight of victims.
To mention a few cases, a magisterial court at Rohini in the national Capital disposed of four cases under PNDT Act in May this year. In three of these cases, convicts were imposed a meagre fine of `1,000 while in another case the offender walked free with just a warning. According to the RTI response, three cases in Rohini and Tis Hazari courts were disposed of after the prosecuting agencies withdrew from the case citing inability to establish the charge. Similarly, the Dwarka district court discharged the accused owing to failure of the prosecution.
The data shows that 20 cases under PNDT Act are pending for over a decade even as the Supreme Court has directed the lower courts to decide such cases within six months. The RTI response reveals that a number of cases dealt with non-maintenance of record of ultrasound done on pregnant women, mandatory under the Act. The Gujarat High Court has ruled that non-maintenance of record by genetic clinics or diagnostic centres amounted to pre-birth sex detections.
Delhi University professor and an academic-activist, Bijayalaxmi Nanda, said the competent authorities should be made accountable for lapses. "Female foeticide and girl child neglect must be treated as a national emergency. The rulebook does not allow minor penalties for sex detection. The authorities must be made accountable," she said. Nanda, a former member of Delhi state supervisory board on PNDT matters, rued that the suggestions and recommendations of the board were hardly heeded to.
Legal experts too pointed out that the maximum punishment under the law needed to be enhanced through amendment to instill a fear in the offenders. Senior criminal lawyer and Delhi Bar Council chairman KK Manan said that in order to make the law a deterrent, courts must award maximum punishment.
"Courts must ensure a strict penalty to offenders. This can be done by amending the existing provisions. The Bar Council of Delhi will take up the matter with the Delhi High Court to issue necessary directions to the lower courts and expedite trial in such cases," Manan said.
'Toothless' law fails to curb female foeticide as courts refuse to jail offenders
'Toothless' law fails to curb female foeticide as courts refuse to jail offenders
Many cases violating the PNDT Act dealt with the non-maintenance of records of ultrasounds done on pregnant women, says an RTI response
Blame it on the unaccountability of the authorities, but the PNDT Act - which was enacted to curb female foeticide and arrest the declining gender ratio in India - has turned into a farce.
In nearly two decades since the law came into force, not a single convict has been imprisoned in the Capital.
Various trial courts in Delhi have shied away from awarding the maximum punishment to offenders and instead let off the convicts with a nominal fine of Rs 1,000.
The PNDT Act provides for a maximum punishment of a three-year jail term and a penalty of up to Rs 50,000.
Despite rulings by the Supreme Court and various high courts to make the existing law a deterrent, the courts have shown reluctance in sending offenders to jail.
In many cases, the convicts have been let off with a mere warning from the judge, prompting a reaction from the legal fraternity as well as social and academic activists.
Lawyers and activists have unanimously demanded deterrent punishment for the guilty while also fixing the accountability of the competent authorities handling the cases of sex detection.
Information provided by Delhi government’s health department in response to an RTI application suggests that 31 out of 52 cases under PNDT Act are pending in various Delhi courts.
However, in the remaining 21 cases disposed of by courts, no convict has been awarded a jail term since 1996, when the Act was enforced.
RTI applicant and activist Dr Mitu Khurana said the police and state government were equally responsible for making the law a “toothless tiger”.
“It is apparent that the prosecuting agencies are not taking these cases seriously, and the fact is well known to offenders. There is no fear of law as it has failed to be a deterrent,” Khurana said.
In the majority of the cases disposed of by the trial courts, the prosecuting agencies chose not to appeal before the higher courts, thus adding to the plight of victims.
To mention a few cases, a magisterial court at Rohini in the national Capital disposed of four cases under PNDT Act in May this year.
In three of these cases, convicts were imposed a meagre fine of Rs 1,000 while in another case the offender walked free with just a warning.
According to the RTI response, three cases in Rohini and Tis Hazari courts were disposed of after the prosecuting agencies withdrew from the case citing inability to establish the charge.
Similarly, the Dwarka district court discharged the accused owing to failure of the prosecution.
The data shows that 20 cases under the PNDT Act have been pending for over a decade despite the facts that the Supreme Court has directed the lower courts to decide such cases within six months.
The RTI response reveals that a number of cases dealt with the non-maintenance of records of ultrasounds done on pregnant women, mandatory under the Act.
The Gujarat High Court has ruled that non-maintenance of record by genetic clinics or diagnostic centres amounted to pre-birth sex detections.
Delhi University professor and an academic-activist, Bijayalaxmi Nanda, said the competent authorities should be made accountable for lapses.
She said: “Female foeticide and girl child neglect must be treated as a national emergency. The rulebook does not allow minor penalties for sex detection. The authorities must be made accountable."
Nanda, a former member of Delhi state supervisory board on PNDT matters, rued that the suggestions and recommendations of the board were hardly heeded to.
Legal experts too pointed out that the maximum punishment under the law needed to be enhanced through amendment to instill a fear in the offenders.
Senior criminal lawyer and Delhi Bar Council chairman K.K. Manan said that in order to make the law a deterrent, courts must award maximum punishment.
“Courts must ensure a strict penalty to offenders. This can be done by amending the existing provisions. The Bar Council of Delhi will take up the matter with the Delhi High Court to issue necessary directions to the lower courts and expedite trial in such case
Read more: http://www.dailymail.co.uk/indiahome/indianews/article-3180416/Toothless-law-fails-curb-female-foeticide-courts-won-t-jail-offenders.html#ixzz45t4YRr7w
MY VIEW: Why Lifting the Ban on Sex Determination Is Bad News for Women in India
MY VIEW: Why Lifting the Ban on Sex Determination Is Bad News for Women in India
The intention to lift the ban on sex determination in order to check the falling child sex ratio has kicked up quite a controversy in India.
The Union Women and Child Development (WCD) Minister Maneka Gandhi’s intention to lift the ban on sex determination in order to curb sex-selective abortions in India misses the woods for the trees.
The law to ban sex determination/sex selection – the Pre-conception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act 1994 – was created to counter the misuse of reproductive technologies for elimination of female foetuses.
The nexus between illegal and unethical medical practitioners and families with an aversion for daughters has been addressed through the various facets of this legislation that was created after country-wide consultations with women’s groups, rights-based organisations, ethical medical practitioners, and citizens’ forums.
One of the most progressive elements of this law is that it keeps a clear distinction between the right to abortion and sex-selective abortion, thereby upholding reproductive rights of women.
The unfortunate reality is that the law has not been enforced properly.
At the same time, in regions where it did get enforced, such as in Punjab, which had the dubious distinction of having the worst child sex ratios in 2001, there has been a positive turnaround in terms of numbers in 2011.
From 795 girls per 1000 boys in the 0-6 age group in the 2001 Census, the child sex ratio in the state has increased to 846 girls per 1000 boys as per the 2011 Census. In fact, the Union government’s holistic programme of Beti Bachao Beti Padhao has a huge component dedicated to the strict implementation of the PCPNDT Act.
So, what are the factors that are pushing the Ministry to even consider withdrawing the ban?
First, due to the pressures on unethical and illegal medical practitioners for accountability and transparency, there is a reaction and counter move by the radiologists, ultrasonologists, and various other vested interests to influence the Ministry.
Another reason is the Prime Minister’s urgent call to provide immediate and quick results on the issue of a skewed child sex ratio.
Since the higher echelons of the government have fraternal bonding with the powerful business interests as well as the doctors’ lobbies, they have discovered their magic silver bullet to deal with the problem at hand – the close monitoring of the pregnancies of women, after compulsory sex determination.
Never mind that it is a travesty of gender justice that the women have to be criminalised and their privacy, bodily integrity, and dignity is completely set at naught.
The limited right to abortion that we have in India will be seriously compromised by this. And, as for the Minister’s fear that the prisons have no place for erring doctors, it will be assuaged by the fact that it will be women who will fill up the prisons now.
More than anything else, the proposed compulsory sex determination will multiply the risk of violence against women by the marital family either to ensure the elimination of female foetus or force her to keep the male foetus in situations where it may be risky for her to continue with her pregnancy.
Instances of ‘accidental’ stove burst deaths and other forms of violence to induce abortion will become more common.
Just as in the case of Dr. Mitu Khurana, the first woman complainant under PCPNDT Act, who reported increased violence against her by her in-laws and husband, once they came to know the sex of the foetus.
Mitu, who has given birth to twin daughters, has managed to do so due to sheer grit and determination and by escaping her marital home.
Although she has been fighting in the Court for the last seven years and justice has eluded her, she believes in the positive efficacy and strength of the PCPNDT Act. Many women like Mitu have been able to withstand pressures to deliver sons by emphasising on the illegality of sex determination. It will impact women’s ability to report on the violence and pressures for sex-selective abortion, since sex determination will become legal.
The PCPNDT Act has not been given a fair chance of implementation. In Delhi for example, there have been around 12 convictions, which are only in the nature of minimal fines and flimsy warnings. Fines include a maximum of up to Rs. 12,000 and the warnings are in the form of asking clinics to be ‘careful in future’. The cases are dismissed on flimsy grounds in the lower courts and the government does not bother to appeal.
There is no audit of the records of the PCPNDT Act and no review of the judgements by any government authorities. In such a scenario where there is a lack of will to implement the Act, it cannot be dismissed as a failed legislation. In Punjab, Haryana and Maharashtra, where there have been substantive convictions, the positive impact on the child sex ratio, in terms of increase in the number of girls born, has been noticed.
Banning sex determination is a significant part of the holistic approach of countering the rampant discrimination against women and girls in India.
Another critical consequence of removing the ban on sex determination and making it compulsory is that it will fill the coffers of the ultrasonologists and the machine manufacturers.
So among all the other irrational uses of ultrasound this, too, will add to the burden of the pregnant woman and her family in terms of expenses. It is important that this move to lift the ban on sex determination is immediately thwarted and set at rest.
Implementing the PCPNDT Act has already delivered positive results wherever it has been sincerely enforced and monitored. So, along with the emphasis on education for girls, as well as employment and property rights for them, the ban on sex determination should continue and be applied more rigorously. The need of the hour is to simply enable women and children to exercise their constitutional and legal guarantees. While the WCD Minister has now come on record to disown her statements on the issue, she alludes to the suggestion to lift the ban on sex determinations as coming from “certain stakeholders”.
The big question is who are these stakeholders? One thing is for sure it’s not the girls and women of the country.
Like this story? Or have something to share? Write to us: contact@thebetterindia.com, or connect with us onFacebook and Twitter (@thebetterindia).
Written by Bijayalaxmi Nanda for Women’s Feature Service (WFS) and republished here in arrangement with WFS.
Mind The Gap
SNAPSHOT
There are many heartening trends, of course. But the truth is that women’s empowerment still has miles to go in India. Many miles.
Unnao, a district in central Uttar Pradesh, hit the headlines in early February this year after a woman was appointed its top cop. It was big news because Neha Pandey, the new superintendent of police, completed the arc of the district’s all-women administrative elite. District magistrate, chief development officer, chief medical officer, chief veterinary officer, sub-divisional magistrate, chief probationary officer…you name it and they’re all women in Unnao. They’re there not by design, but purely by happenstance—a glowing example of women power in the country’s administrative services.
Unfortunately, spectacular as it is, Unnao’s ruling sisterhood does not hold up the true picture of women’s empowerment in India. It represents the exception rather than the rule, the proud stories of the success of a few set against the backdrop of a vast majority of women who are still unable to access equal opportunities to life and work.
While some shatter every glass ceiling imaginable and rise to the heights of their professions, most others continue to be subjected to violence, discrimination and crippling inequity. They battle a change-resistant patriarchal society, and are often reduced to secondary beings who are denied the freedom to make their own life choices.
In fact, Indian women fare poorly on any socio-economic indicator of human development. Whether it is workforce participation, sex ratio, maternal mortality rate, the incidence of crimes against women, literacy, access to decision making and political power, women, who make up 48.5 per cent of our population, languish at the bottom of the heap.
Last year, the World Economic Forum Gender Gap Report, that ranks countries based on women’s economic participation, education, health and political empowerment, placed India 108 in a list of 145 countries. That was an improvement over 2014 when the country was ranked 114 on the Gender Gap index. Even so, it’s clear that India has a lot of catching up to do to achieve gender parity.
Work Woes
On February 8, a two-judge bench of the Supreme Court ruled in favour of Richa Sharma, who had been denied the post of deputy superintendent of police in Chhattisgarh on grounds of age. This, despite the fact that according to the service rules, as a woman, she was entitled to a relaxation of the upper age limit for the post. In his judgment, Justice A.K. Sikri said, “It is now realized that real empowerment would be achieved by women…only if there is an economic empowerment of women as well.”
Indeed. But the reality is that despite the many inspiring achievements, a staggering majority of women in India remain outside the loop of economic empowerment. Their participation in the workforce is not just shockingly low, it’s actually heading down.
Look at the data. According to the 2011 Census, the female labour force participation (FLFP) rate is 25.51 per cent as against 53.26 per cent for men. Significantly, rural areas, where women are chiefly employed in unskilled agricultural work, contribute the largest numbers. For example, while their workforce participation was 24.8 per cent in rural areas in 2011-12, the corresponding figure was just 14.7 per cent in urban India.
What’s even more disturbing is that women’s participation in the labour force is declining. According to National Sample Survey data, betwen 2004-05 and 2011-12, FLFP fell by as much as 11 percentage points.
So why are women falling back when it comes to joining the labour force and tasting financial independence, without which they can never hope to attain any agency?
Experts say the downtrend is because not enough manufacturing jobs are being created. “The income opportunities that are there are mostly for illiterates or graduates and above,” says Professor Neetha Pillai of the Centre for Women’s Development Studies in Delhi.
But India now has a huge pool of females, who have some education and are not terribly poor, wanting to enter the labour market. They are turning away from agriculture or construction work, to find that the only options available are low-end jobs in the service sector such as paid domestic work or in retail and others. An expansion in factory jobs could have absorbed them into the labour force—indeed, historically, countries that witnessed a swift uptick in FLFP also underwent a boom in the manufacturing sector. Bangladesh, which has a vibrant garment manufacturing industry, has an FLFP of 57 per cent, more than double that of India’s.
There are other factors that stand in the way of women entering—and staying—in the workforce. Thanks to patriarchal mores, women are still considered the primary caregivers. Hence the lack of part-time jobs and institutions for the care of children and the elderly hold them back. “You need to create employment as well as women-friendly policies and institutions to get women into the workforce,” says Prof Pillai.
In September last year, a report by McKinsey Global Institute, the business and economic research arm of consultancy firm McKinsey & Co, estimated that India could add as much as $2.9 trillion to its annual GDP by 2025 if it improved gender parity and engaged the full potential of its female workforce.
However, without the creation of jobs and favourable policies to enable women to access them, that seems a distant dream.
Lives Unlived
There is a heart of darkness in the story of the status of women in India. And that is female foeticide. Forget equality, thousands upon thousands of girls are not even being allowed to be born, their right to life snatched away, their possibilities nipped in the bud.
The Pre-Conception and Pre-Natal Diagnostics Act of 1995 bans sex-selective abortions. But female foeticide continues unabated, ably supported by a thriving underground industry run by doctors in collusion with lawkeepers. Unofficial estimates suggest that close to half a million female foetuses are aborted every year.
Between 2001 and 2011, India’s sex ratio improved somewhat—from 933 to 943. That’s still way below the internationally accepted figure of a minimum of 950. But the really worrying trend is that during the same period, child sex ratio (age group of 0-6) dipped from 934 to 918, a clear indication of the phenomenon of vanishing girl babies.
The causes of girls not being allowed to see the light of day are not far to seek. “The practice of dowry is the biggest cause of female foeticide. Girls are considered a burden, a financial drain, and in any case a paraya dhan—one who will belong to another family. They are unwanted,” says National Commission for Women chairperson Lalitha Kumaramangalam.
The NDA government’s high profile Beti Bachao Beti Padhao programme that is directed against female foeticide and the education of the girl child has just completed a year. Maybe it will do some good, but it’s still too early to tell.
Strangely, the spread of education and development seems to have done little to stem the tide of sex-selective abortions. “On the contrary, by and large, development has had an adverse effect on sex ratios,” points out Professor Saraswati Raju of the Centre for the Study of Regional Development, Jawaharlal Nehru University. For example, the sex ratio in South Delhi, arguably one of the most affluent areas of the country, is an abysmal 859. Again, states like Himachal Pradesh, Gujarat, Maharashtra and Punjab, all of which have high literacy rates, exhibit low sex ratios.
Professor Raju explains that earlier there were social constructs that had a balancing effect on the sex ratio. “Large families meant that people would wait for a boy child or a girl child. But now, with late marriage, the small family norm, and the availability of the technology, even educated, affluent families are choosing to abort girls,” she says.
Mitu Khurana, a Delhi-based doctor, filed a case in 2008, charging her husband and his family of forcing her to undergo illegal sex determination when she was pregnant and then pressuring her to abort her twin female foetuses. She refused to terminate her pregnancy and was subjected to violence and intimidation, she says. Last year, the court ruled in favour of her husband, who is also a highly qualified doctor. Mitu has vowed to fight on.
Sex-selective abortions are a denial of the right to life of girls; it perpetuates the notion that girls are “worthless”; and fewer girls also mean more violence against them. In parts of Haryana, which has a sex ratio of 879, rampant female foeticide is already giving rise to dystopic trends. Entire villages are virtually empty of girls. Men who can afford it, import wives from other states. Those who can’t, are at a higher risk of committing violence on women who may be out for work or play.
She Is A“Loose” Woman, She’s Asking For Rape
Violence against women is of course a global problem. But it is so endemic in India and manifests itself in so many different ways that it is perhaps the most telling predictor of the appalling inequality and insecurity which women have to contend with in this country.
And the violence shows no signs of slackening. According to data from The National Crime Records Bureau, there were 36,735 cases of rape in the country in 2014, up from 33,707 in 2013; dowry deaths went up from 8,083 in 2013 to 8,455 in 2014; cases of cruelty by husband and relatives went up from 118,866 in 2013 to 122,877 in 2014. Add to this the many thousands of instances of sexual assault, acid attack, sexual harass-ment in the workplace and so on, and you have a grim picture of women continually sought to be bludgeoned into submission by men.
“Patriarchy is at the root of this violence,” says Ranjana Kumari, director, Centre for Social Research (CSR), a Delhi-based NGO that works for women’s empowerment. “Girls and boys are born equal. But from childhood, they are taught that boys have agency, girls do not; boys are superior, girls inferior.”
Violence against girls and women is but a short step from that.
The sexist indoctrination operates at such a visceral level that often women too believe in it implicitly. Domestic violence is reported much more now. But even today, a lot of women believe that getting beaten up is their given lot. Kumari narrates the case of one Sumitra Devi who lives in Delhi’s Mahipalpur area. She had come to CSR for help after enduring regular beatings by her husband for 18 years. Thrown out of her home and beaten black and blue, Sumitra would still not hear of a case being filed against him: “Woh toh mera pati hai. Aap unko sirf samjha dijiye (He is my hus band. Please just speak to him and make him understand).”
We’re The Boss
Entrenched patriarchal attitudes pose the biggest impediment to women’s empowerment in India. The men set the rules for women—codes of conduct, dress, marriage, work, worship. They decide what is “womanly” and what is not, what befits women and what does not. Defiance of the coda brings swift and violent retribution.
So a khap panchayat may sanction the murder of a girl and a boy belonging to the same gotra who run away to get married; a college may impose a no-jeans stricture on women students; families may stamp out a woman’s ambition to work and earn an income; and sundry lumpens might gang-rape a girl out with her boyfriend of an evening. Because, after all, a girl in the company of a boyfriend is “bad” and deserves no better.
Sadly, often it is women themselves who are patriarchy’s staunchest handmaidens. “The patriarchal mindset is not only guarded and expanded by men, but also by women,” remarks Kumaramangalam. “And that mindset is regardless of religion, caste, community, political affiliation and so on.”
Again, discrimination against girls and women is so systemic, so ingrained in families and the society at large, that despite a raft of government schemes for their welfare, very often, there is no delivery. “Every third girl child is still not in school,” points out Kumari. Women’s literacy languishes at 65 per cent as against 82 per cent for men. Women’s health too continues to be a matter of concern. India’s maternal mortality ratio (MMR)—the number of maternal deaths per 100,000 live births—has declined from 301 in 2001 to 167 in 2011. That’s a huge improvement, but the MMR is still far behind that of countries such as Brazil (56), China (37) or the UK (12).
Power Of Politics
Activists say that women’s empowerment in India also hinges on their coming into the political process in greater numbers. For, they will in turn press for women-centric policies. However, despite the high-decibel presence of a few women central ministers and state chief ministers such as Mamata Banerjee, Vasundhara Raje or J. Jayalalithaa, the fact is that only 12.2 per cent of the country’s parliamentary seats are held by women.
The Women’s Reservation Bill, that stipulates 33 per cent reservation for women in Parliament, was passed in the Rajya Sabha in 2010. Since then it has been gathering dust.
“It’s representative democracy that is at stake here. If you have a whole constituency not represented adequately in Parliament, you cannot get across the issues that concern them. While not all women MPs are women-friendly, a lot of them will take up issues that are neglected by patriarchy,” asserts Kirti Singh, a senior lawyer and activist based in Delhi. (See “Politics of Patriarchy” for a detailed report on Indian women in politics)
Change Is Coming
Though the uplift of women in India is very much work in progress, no one doubts that having come this far, women can only go farther and higher. Kumaramangalam, for one, is optimistic. “Though women are having to fight patriarchal attitudes even now, that too is changing. As more and more women enter the police, bureaucracy, judiciary and politics, they are triggering change. It’s taking time, but then change is resisted so strongly, it will take time.”
A particularly heartening trend is that a lot of young men are becoming part of the process. “Many of them are sharing parenting responsibilities and supporting women in their endeavours. I am very hopeful about the young people of this country,” says Ranjana Kumari of CSR.
Indeed, if women hold up half the sky, it is important to recognize that men hold up the other half. The complex and multipronged effort to unshackle women and empower them must involve men too.
There is every reason to hope that we are getting there.
Feasible To Monitor The Womb?
Feasible To Monitor The Womb?
Proposals to curb sex-selective abortion should be made with due deliberations even as social realities cripple India’s attempts to improve a skewed sex ratio.
2016-02-16 , Issue 7 Volume 13
It has been five years since the 2011 Census revealed the dismal sex ratio in India, its worst since Independence: That of 943 females per 1,000 males. Shockingly, child sex ratio (of those between 0-6 years of age) was lesser: 919 females per 1,000 males. Five years after the census, India is still grappling with this social anomaly despite having taken various measures to stem it.
Stirring a hornet’s nest, the Minister for Women and Child Development, Maneka Gandhi recently suggested that sex determination be made mandatory and each pregnancy be registered and tracked till the time of birth. Speaking at the sidelines of an event, Maneka said her ministry had sent a proposal for the same to the Ministry of Health and Family Welfare under whose purview the Act falls. However, this proposal was soon retracted by the minister. When Tehelka contacted the Ministry of Women and Child Development, it defended Maneka’s statement by saying that the Act (PCPNDT) does not come under its purview. Why then did the minister make such a statement without proper deliberation?
For starters, her statement completely negates the premise of the existing law – Pre Conception and Pre Natal Diagnostic Techniques Act 1994 (PCPNDT Act) – that bans sex determination unless it arises out of medical complications. The Act was enacted in the context of rising sex-selective abortions due to the ready availabilityof ultrasounds. “Sex-selective abortions rose into prominence because ultrasounds would identify the female foetus and parents who preferred a son began terminating the pregnancy,” says Mohan Rao, social medicine and community health professor in Jawaharlal Nehru University (JNU). Through banning sex determination, the Act was also clamping down on medical practitioners who aided such abortions.
Maneka’s ‘proposal’ thus met with lot of resistance from various sections as it was seen as a move to benefit medical players. “This is a reprehensible statement which points to the fact that Maneka isn’t there for the welfare of women but for the welfare of the medical industry,” says Rao. An abortion, whether sex-selective or not, cannot be done without the help of the medical fraternity. A statement issued in public domain by a national collective of women’s organisations and social activists points out that Maneka’s statement undermines the efforts to check the handin- glove involvement of health professionals. “The pcpndt Act was formulated precisely to address the manner in which unscrupulous health professionals and corporate profiteers have misused technology and made sex selection into a lucrative business venture,” it reads.
Shifting the onus of the pregnancy on the mother effectively means overlooking the role of the medical establishment. “Tracking of pregnancies will conveniently let the medical fraternity off the hook and that will definitely lead to further increase in female foeticide,” says Tehmina Arora, lawyer and founder of Vanishing Girls, a campaign dedicated to fight selective sex abortion.
Maneka’s statement has again brought to the fore the many debates surrounding the subject of abortion and foeticide. The government has time and again sought to address the problem of sex selective abortions from the National Action Plan (1991-2000) to the most recent Beti Bachao, Beti Padhaoscheme, launched by the Centre. While these create awareness against sex selective abortions, one is forced to question the extent to which the State can interfere in the personal and biological sphere of a woman’s life.
Through her statement the minister has reinstated the fact that women will be the only ones made answerable, overlooking external factors that push for a selective termination of pregnancy. Additionally, such deep intrusions in a woman’spersonal life reiterates that she is incapable of making decisions for herself. “The statement made by Maneka Gandhi is unacceptable as it turns towards women’s surveillance and policing, making it extremely problematic,” says Nivedita Menon, feminist and professor in JNU for comparative politics and political theory.
Further, Maneka’s ‘proposal’, if implemented will impinge on a woman’s right toabortion. The argument arises from an inconclusive debate around a woman’s right to her body and thus her choice whether or not to terminate the pregnancy. The other facet of this debate equates terminating a pregnancy with foeticide – the word foeticide coinciding with words like matricide or patricide amounting to murder. However, what could complicate matters is when a woman herself makes a choice towards sex selective abortion.
Another problem arising out of Maneka’s comment is the implication of criminalising pregnant women who already bear the brunt of gender discrimination in society. “I have faced opposition from all quarters in my fight against female foeticide. A woman willing to fight to save her daughters has no support system. Such a move will only deem the woman as criminal,” says Dr Mitu Khurana, survivor of violence for giving birth to twin daughters and one of the most prominent faces fighting against sex selective abortions in India.
It is an open secret that women are at the risk of being largely mistreated if their families do not want a daughter and with sex selection being mandatory, she will find herself in a hostile environment detrimental to her and her child. “Women carrying female foetuses will be starved and beaten, “accidental stove bursts” will increase when relatives find out that the child is a girl,” says Khurana. “Women are mostly forced into sex selective abortions and tracking a pregnancy is going to make the woman even more vulnerable with the risk of her being thrown out of the house,” agrees Arora.
With her statement, the minister has shown disregard for the intention behind the Act to prevent sex discrimination. Maneka has conveniently overlooked the fact that the prevalent preference for a son will pressurise women to complete their term of pregnancy even if at the risk of her health. On the other hand, reversal of the PCPNDT Act, may imply repetitive abortions which is also going to have adverse effects on her reproductive health. As number of illegal abortions rise, the very lives of women will be endangered.
Notwithstanding, all the other complications that the State will have to face, tracking pregnancies till birth will require a massive scale of surveillance – monitoring an annual average of 2.5 crore pregnancies – which it is ill equipped for. “The government has failed to monitor a few thousand radiologists and doctors. How does it propose to monitor lakhs of pregnancies for nine months?” asks Khurana. Keeping track of miscarriages whether accidentally or purposely induced is another mammoth task.
Feminist groups point out that the real root of the problem is the implementation of the current PCPNDT Act. According to a 2005 UNICEF report, 7,000 female foetuses were selectively aborted whereas only one percent of doctors faced prosecution. What also needs to be understood is that women’s right to their own body and private lives does not justify State interference. Female foeticide does not warrant sex determination and if the State indeed was to monitor pregnancies then it should be done with the intention of monitoring both the woman and child’s health.
nikita .lamba @tehelka.com
Dowry, Bangladeshi Gang Rape, and The Value of a Woman
Sixty million.
Sixty million infant and teen girls are “missing” from Southern Asia today. These helpless young girls and women are victims of a society built upon patriarchy and inadequate dowry payments, infanticide, abuse, and neglect. Because of these things, the subcontinent of India is undergoing a female gendercide. With this figure multiplying each day, people in countries like Bangladesh and India are making it their responsibility to end the disenfranchisement of women in their country. It’s no secret that women all around the globe are objectified or taken advantage of, but being a woman in rural Bangladesh and trying to get justice for the sexual or violent crimes committed against you is nearly impossible. To begin understanding this injustice, we must first examine the value of women in Southern Asia.
“In many nations, particularly India and China, the three most dangerous words heard at the birth of a child are: ‘it’s a girl,’” (independent.co.uk). It is believed in Indian culture that sons bring a family financial prosperity as well as protection, and in their society this is not entirely untrue. Due to the dowry practice still in place in many poor parts of South Asian countries like India and Bangladesh, the families of brides-to-be owe some form of material goods or cash to either their future son-in-law or his family. The factors and reasons for this system vary by region. Usually, in northern India the dowry acts as a pre-mortem inheritance for the bride that is supposed to protect her financial status if her husband or parents die. However, if the bride’s parents don’t give an adequate dowry, many times grooms and their families will become violent. A common practice in Bangladesh involves throwing acid on women to cause disfigurement. Along with all of the physical and emotional abuse these women face, they experience pressure from their parents or the patriarchal society that forces them to endure the abuse and stay faithful to their husbands. While this practice was outlawed in certain states by India’s Dowry Prohibition Act of 1961, the law is rarely enforced. A dowry is often expected by many parents in both India and Bangladesh. According to a study conducted by the World Bank Development Research Group, forty percent of Indian parents still expect some form of dowry payment. Due to high poverty rates, with 32% of Indians and 31.5% of all Bangladeshi people living below the poverty line, paying for rising dowry demands is difficult for many families. Due to this, many women in rural India and Bangladesh practice infanticide. The system of patriarchy in many rural South Asian communities believes that boys will grow up to work, and in general make more money than girls. The boys will in turn help their families financially through their jobs as well as the expensive dowry they’ll receive in the future. Infant girls are seen as draining of their family’s resources and if a family is already struggling to eat, having a girl who they’ll need to pay a high dowry for in the future is seen as a burden to many. By placing a higher value on a male’s life at birth, both men and women are conditioned to believe that women’s lives don’t matter and in turn, their societies systematically target and kill female children.
Usually when a woman is raped, she is blamed in one way or another. Women have become scapegoats for the very sexual crimes committed to them. However, many women are terrified to reveal the atrocities committed against them by these perpetrators. In many cases, the women are shamed by their communities and families into not revealing that they were raped, so as to uphold family honor. In several cases, these women know the men who raped them — of all the cases in India, 98% who reported knew their rapist. In the case of Raheema, a Bangladeshi woman who was the victim of a gang rape, her rapists were not even put on trial. She is marginalized by her community because of this incident. Gang rape in Bangladesh has become a severe issue. With gang rape becoming commonplace in Bangladeshi society, it is said that, “1.9% of all rural men in Bangladesh have committed multiple perpetrator rape (gang rape) of a woman who was not a partner,” (omicsgroup.org). However, local officials still fail to recognize rape as a serious issue. It is this system of denial and refusal to recognize the sheer amount of rape cases that allows these crimes to continue. By blaming it on the lack of a woman’s virtue, Bangladeshi society is trivializing rape and undermining the value of women’s lives.
Virtue is commonly tied to religion. Bangladesh holds the fourth largest Islamic population in the world, with 90.4 percent of Bangladeshi peoples practicing. Islam is a peaceful religion, and the very word Islam, which means “surrender” is related to the Arabic root word “Salaam” which means peace. As the Islamic doctrine states, Muhammad brought the teachings to the Arabic tribes who were warring in hopes of ending the fighting and bringing peace. However, as many religious leaders tend to do, they adjust the words in their holy text to justify their points of view. Local Imams have a great deal of influence over the men in Bangladeshi and Indian communities. Men go to them for guidance, and if this guidance happens to objectify women, they often twist passages in the Quran to support their treatment of women. However, the Quran states that men and women are equal, and that men must treat women with respect:
“O you who believe! You are forbidden to inherit women against their will. Nor should you treat them with harshness, that you may take away part of the dowry you have given them – except when they have become guilty of open lewdness. On the contrary live with them on a footing of kindness and equity.”
Furthermore, the idea that women must hide themselves so that men do not become tempted to violate them, is an idea conjured up by several Imams, when in reality the Quran says in 24:30:
“Tell the believing men that they shall subdue their eyes (and not stare at the women), and to maintain their chastity. This is purer for them. God is fully Cognizant of everything they do.”
and in Quran 24:31:
“And tell the believing women to subdue their eyes, and maintain their CHASTITY.”
How can a society that places minimal adherence or value to the lives of women bring them justice when they are sexually vandalized? The system of patriarchy completely undermines the lives and opinions of women. The dowry system places a material value on the immaterial souls and lives of millions of Indian and Bangladeshi women, and in turn allows men to take advantage of them because after all, they are merely objects in the eyes of their male counterparts. However, today women and men are advocating for real change. In India, Mitu Khurana has become a catalyst for change by transforming her story into a way to advocate for justice for women. For real change to come about, women and men must stand up, and abolish the vile dowry system that continually oppresses women today. Only then can they begin to rebuild a greater sense of value for a woman’s life.
Sixty million infant and teen girls are “missing” from Southern Asia today. These helpless young girls and women are victims of a society built upon patriarchy and inadequate dowry payments, infanticide, abuse, and neglect. Because of these things, the subcontinent of India is undergoing a female gendercide. With this figure multiplying each day, people in countries like Bangladesh and India are making it their responsibility to end the disenfranchisement of women in their country. It’s no secret that women all around the globe are objectified or taken advantage of, but being a woman in rural Bangladesh and trying to get justice for the sexual or violent crimes committed against you is nearly impossible. To begin understanding this injustice, we must first examine the value of women in Southern Asia.
“In many nations, particularly India and China, the three most dangerous words heard at the birth of a child are: ‘it’s a girl,’” (independent.co.uk). It is believed in Indian culture that sons bring a family financial prosperity as well as protection, and in their society this is not entirely untrue. Due to the dowry practice still in place in many poor parts of South Asian countries like India and Bangladesh, the families of brides-to-be owe some form of material goods or cash to either their future son-in-law or his family. The factors and reasons for this system vary by region. Usually, in northern India the dowry acts as a pre-mortem inheritance for the bride that is supposed to protect her financial status if her husband or parents die. However, if the bride’s parents don’t give an adequate dowry, many times grooms and their families will become violent. A common practice in Bangladesh involves throwing acid on women to cause disfigurement. Along with all of the physical and emotional abuse these women face, they experience pressure from their parents or the patriarchal society that forces them to endure the abuse and stay faithful to their husbands. While this practice was outlawed in certain states by India’s Dowry Prohibition Act of 1961, the law is rarely enforced. A dowry is often expected by many parents in both India and Bangladesh. According to a study conducted by the World Bank Development Research Group, forty percent of Indian parents still expect some form of dowry payment. Due to high poverty rates, with 32% of Indians and 31.5% of all Bangladeshi people living below the poverty line, paying for rising dowry demands is difficult for many families. Due to this, many women in rural India and Bangladesh practice infanticide. The system of patriarchy in many rural South Asian communities believes that boys will grow up to work, and in general make more money than girls. The boys will in turn help their families financially through their jobs as well as the expensive dowry they’ll receive in the future. Infant girls are seen as draining of their family’s resources and if a family is already struggling to eat, having a girl who they’ll need to pay a high dowry for in the future is seen as a burden to many. By placing a higher value on a male’s life at birth, both men and women are conditioned to believe that women’s lives don’t matter and in turn, their societies systematically target and kill female children.
Usually when a woman is raped, she is blamed in one way or another. Women have become scapegoats for the very sexual crimes committed to them. However, many women are terrified to reveal the atrocities committed against them by these perpetrators. In many cases, the women are shamed by their communities and families into not revealing that they were raped, so as to uphold family honor. In several cases, these women know the men who raped them — of all the cases in India, 98% who reported knew their rapist. In the case of Raheema, a Bangladeshi woman who was the victim of a gang rape, her rapists were not even put on trial. She is marginalized by her community because of this incident. Gang rape in Bangladesh has become a severe issue. With gang rape becoming commonplace in Bangladeshi society, it is said that, “1.9% of all rural men in Bangladesh have committed multiple perpetrator rape (gang rape) of a woman who was not a partner,” (omicsgroup.org). However, local officials still fail to recognize rape as a serious issue. It is this system of denial and refusal to recognize the sheer amount of rape cases that allows these crimes to continue. By blaming it on the lack of a woman’s virtue, Bangladeshi society is trivializing rape and undermining the value of women’s lives.
Virtue is commonly tied to religion. Bangladesh holds the fourth largest Islamic population in the world, with 90.4 percent of Bangladeshi peoples practicing. Islam is a peaceful religion, and the very word Islam, which means “surrender” is related to the Arabic root word “Salaam” which means peace. As the Islamic doctrine states, Muhammad brought the teachings to the Arabic tribes who were warring in hopes of ending the fighting and bringing peace. However, as many religious leaders tend to do, they adjust the words in their holy text to justify their points of view. Local Imams have a great deal of influence over the men in Bangladeshi and Indian communities. Men go to them for guidance, and if this guidance happens to objectify women, they often twist passages in the Quran to support their treatment of women. However, the Quran states that men and women are equal, and that men must treat women with respect:
“O you who believe! You are forbidden to inherit women against their will. Nor should you treat them with harshness, that you may take away part of the dowry you have given them – except when they have become guilty of open lewdness. On the contrary live with them on a footing of kindness and equity.”
Furthermore, the idea that women must hide themselves so that men do not become tempted to violate them, is an idea conjured up by several Imams, when in reality the Quran says in 24:30:
“Tell the believing men that they shall subdue their eyes (and not stare at the women), and to maintain their chastity. This is purer for them. God is fully Cognizant of everything they do.”
and in Quran 24:31:
“And tell the believing women to subdue their eyes, and maintain their CHASTITY.”
How can a society that places minimal adherence or value to the lives of women bring them justice when they are sexually vandalized? The system of patriarchy completely undermines the lives and opinions of women. The dowry system places a material value on the immaterial souls and lives of millions of Indian and Bangladeshi women, and in turn allows men to take advantage of them because after all, they are merely objects in the eyes of their male counterparts. However, today women and men are advocating for real change. In India, Mitu Khurana has become a catalyst for change by transforming her story into a way to advocate for justice for women. For real change to come about, women and men must stand up, and abolish the vile dowry system that continually oppresses women today. Only then can they begin to rebuild a greater sense of value for a woman’s life.
Categories: Articles, Gender, Race/Ethnicity
Make child sex-determination must: Maneka Gandhi's idea is revolutionary, but it hasn't been thought out
Make child sex-determination must: Maneka Gandhi's idea is revolutionary, but it hasn't been thought out
Make child sex-determination must: Maneka Gandhi’s idea is revolutionary, but it hasn’t been thought out
by Feb 3, 2016
Union Woman and Child Development Minister Maneka Gandhi suggested that child sex determination during pregnancy be made compulsory, the gender of the child registered right from that moment, and the birth be tracked. She said this at the All-India Regional Editors Conference in Jaipur on Monday, while responding to a question about people employing different means to detect the gender of an unborn child, in contravention of the Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act.
After her statement generated a substantial debate, Maneka's office issued a statementclarifying her stand and said: "Some of the newspapers have reported that the Minister referred to a Cabinet proposal about tracking female foeticide and registering the sex of the foetus. This is factually incorrect. What was discussed by the Minister was that effective implementation of the PCPNDT Act is one of the ways to check falling child sex ratio."
Statement and clarification aside, the fact of the matter is Maneka Gandhi did say that female foeticide can be checked by making sex determination compulsory and tracking the mothers and which is where the problem lies.
India is among the countries with the worst child sex ratios in the world. The 2011 Censusshowed that the child sex ratio has dipped from 927 girls in 2001 to 919 girls in 2011. Child sex ratio shows the number of girls per 1,000 boys between the ages 0-6. The data proves that India has an abysmal record when it comes to reining in the cases of female foeticide. Latest Census numbers also cast a shadow on the adequacy of measures which are helping in educating people to not prefer sons over daughters. Reports said that with 919 girls per 1000 boys, child sex ration in India has reached its lowest levels since 1961. Hindus, who make up 80 percent of the population of the country, saw their child sex ratio come down from 925 to 913 between 2001-2011, in line with Muslims, Christians and Buddhists.
Now, let's revisit what Maneka suggests.
The Union minister said, "Hamari ek raai hai… we've even read in newspapers about a blood test which tells the gender immediately, so till when will we make criminals of people? Better still, we change the policy and make it compulsory to tell a pregnant woman if it is a boy or a girl, and get her registered. Then you will be able to monitor it, whether she is born or not."
The idea is brilliant and there's no denying that. Whenever a family tries to abort a girl child, the system cracks down on them. We will need a system which will diligently track and honestly monitor the mother and the child and not only till the delivery but a year from the birth of the baby. But is it too good to be true?
It is.
In a country as vast and as corrupt as ours, the suggestion, if practiced, will be counter-productive and riddled with holes. First of all, by making sex-determination compulsory, 'diagnostic centres' which perform these services will mushroom out of control. They will be legal and hence thrive better. And how will tracking the mother help at all?
Who will track the mothers and what their families are putting them through in a country over populated like India where patriarchal system is deep-rooted and sex-selective abortion is rampant.
"The concept is extremely catchy but you cannot find an easy solution for such a difficult and a deep-rooted problem," Varsha Deshpande, Satara-based social activist who is also national inspection committee member of Health and Family Welfare Ministry in the government of India, told Firstpost over the phone. Deshpande said that a person like Maneka who is extremely sensitive about issues relating to women needs to be more careful of the statements she makes. "There is a lobby of doctors and corporations who are using her to make their ends meet. This is not Beti Bachao, this is doctor/technician bachao. Maneka is committed to the cause, but how is it possible to track all these women and their children. That apart, if this rule really comes to effect, the government will be attacking abortion rights of women," Varsha added.
Social and women rights activists maintain that it is a much smarter idea to track the diagnostic centres, its doctors and technicians rather than the mother and the child. However well-intended Maneka's statement be, the minister's suggestion could overthrow what she intends to achieve. The police and the system will then go after the mother, who in this setup, has less or almost no say on whether to give birth to a girl child.
"There is already a system in place which is more or less working, it is at least picking up, but Maneka wants to uproot this system and replace it with a new one which is riddled with holes. Who will track the child? Who will track the mother? Who will track those million centres? Delivery happens in public hospitals, homes and even roads and fields - where all will the government go and track these deliveries?" asked author, women's rights activist and legal scholar Flavia Agnes.
"The statement is a sensational one and that's all the purpose is. She (Maneka) does not realise what she has said and I don't know how she is going to undo it. But it is an irrational statement," Agnes told Firstpost.
Mitu Khurana, a Delhi-based paediatrician, who is hoping to set a legal precedent after taking her husband and in-laws to court for 'conspiring to kill her twin daughters in the womb', said:
"This is an attempt to take away the responsibility from the doctors and shift the blame on the women. See if you cannot monitor a few thousand doctors, how do you plan to monitor millions of deliveries? Who is going to monitor that. This is just going to encourage female foeticide. How about the spontaneous abortion? Will you put the blame on women for spontaneous abortions? Everytime the abortion is not induced, it can happen by itself also. So how do you differentiate if the woman had gone for an abortion or it was a spontaneous abortion. It is against the basic women's right of abortion. Even the UN has said that abortion is a right of a woman. They are taking the onus from the doctors who are doing illegal gender determination and putting on the poor women. Also, if a family finds out it is a girl child, the expectant mother would be subjected to several forms of atrocities. If a woman, identified carrying a female child, is beaten up she will suffer a miscarriage."
Speaking to Firstpost, Mitu said that it seems like the idea of making sex-determination tests mandatory has been floated by the doctors who want to get rid of the PCPNDT Act. "Till 2008, no such ideas were floated. In the past two to three years the government has become a bit serious in implementation of the PCPNDT Act. Since then the doctors have been objecting to it. As far as my knowledge is concerned it has come from the doctors lobby as they want to escape the punishment." Mitu reiterated what Varsha Deshpande said, "It is like renaming Beti Bachao, Beti Padhao to Doctor Bachao Paise Kamao."
Even though Maneka's suggestion on paper sound ingenious at the first instance, the government needs to improve the existing system which is falling apart. Under the PCPNDT Act, trying to determine the unborn child's sex is a punishable crime, but people are still doing it and getting away with it. How will the new suggestion by the Union Minister make any difference? Instead, it will open a Pandora's box of new issues and a higher rate of sex-selective abortion.
Woman loses seven-year battle against sex determination tests
Woman loses seven-year battle against sex determination tests
Woman loses seven-year battle against sex determination tests (dna)
ARADHNA WAL | Wed, 30 Sep 2015-07:20am , New Delhi , dna
Not enough: The first woman in India to take her husband and in-laws to court under the act banning sex determination of fetuses loses the case over 'lacunae in circumstantial evidence
A seven-year struggle for the first woman in India to file a case against her husband and her in-laws under laws banning sex determination of fetuses ended bleakly when, on Tuesday, a trial court in Delhi dismissed her case.
Dr Mitu Khurana, a Delhi-based paediatrician had been fighting to protect her twin daughters and get justice for herself since 2005, from her husband and her in-laws, with an uncooperative police and legal system.
Khurana herself refused to talk to the press, breaking down repeatedly over the phone.
Her lawyer, AN Agarwal, told dna he had no idea what happened in court, as the order seemed to not have taken into account any of their arguments. "They didn't even take cognisance of the case till 2011 because they didn't know the law till we explained it word for word," he added. The accused in the case were her husband, her in-laws, the hospital and the imaging centre that performed the ultrasound, and the radiologist who signed off on it.
The court's 17-page order dismissed the case based on 'lacunae' in circumstantial evidence.
The Pre-conception and Pre-Natal Diagnostics and Test Act was passed in 1994 and, in 2008, Khurana became the first woman in India to file a case against her husband and in laws under this act. Married in 2004, Khurana became pregnant with twins in April 2005, and, in her complaint to the court, she alleged that her in-laws pressured her continually to determine the sex of the fetuses. When she resisted, they allegedly tricked her into being hospitalised at Jaipur Golden Hospital, a fairly large and renowned facility in north-west Delhi, where they conspired with doctors to get a sex determination test done.
In her complaint she wrote that they fed her cake with egg, which she is allergic to, making her so ill as to need immediate attention.
After the test, which she remained unaware of till her husband drunkenly confessed to her a year later, she was pressured towards an abortion. Alarmed she tried complaining to her local police station, who did not file an FIR as they were not the concerned authority. However, said Agarwal, they did not inform Khurana that she should approached the Chief District Medical Officer (CDMO).
"Her husband even gave her an apology in writing, along with an assurance that he would never do such a thing to her again," said Agarwal.
Only in 2008, through sheer accident, did she come across the medical report that, her complaint read, confirmed to her that the hospital had performed a fetus ultrasound without her consent, instead of the Kidney Urator Bladder ultrasound she need for her allergy to be treated. This time, Agarwal said, she complained to the CDMO, who carried out a raid in the hospital and found merit in her complaint. They found evidence that the crucial Form F, that has to be filled by patients for ultrasound sonography, was not filled properly, as was the case with Khurana.
"Even then, they only took cognisance in 2011 and issued summons to the accused," said Agarwal.
The state response has been disappointing all along. In 2012, Dr Harsh Mahajan, the director of the imaging centre, and one of the accused in Khurana's case, in 2012, appointed as a member of a committee, which is set to examine and possibly amend the format of Form F, as he was the president of the Indian Radiological and Imaging Association.
Rude reality
Only in 2008, through sheer accident, did she come across the medical report that, her complaint read, confirmed to her that the hospital had performed a fetus ultrasound without her consent, instead of the Kidney Urator Bladder ultrasound she need for her allergy to be treated. This time, Agarwal said, she complained to the CDMO, who carried out a raid in the hospital and found merit in her complaint. They found evidence that the crucial
Form F, that has to be filled by patients for ultrasound sonography, was not filled properly, as was the case with Khurana.
"Even then, they only took cognisance in 2011 and issued summons to the accused," said Agarwal.
At home too, illegal sex determination is not the only battle Khurana has fought. Abuse, dowry demands, verbal harassment, have all been part of the marital package.
India activist to fight sex determination ruling
India activist to fight sex determination ruling - BBC News
India activist to fight sex determination ruling 8 October 2015
Dr Mitu Khurana alleges her husband and in-laws tried to make her abort her twin daughters in 2005
The first Indian woman to initiate proceedings against her ex-husband and his relatives under a law that bans foetal gender determination, has vowed to challenge a court order that absolved the accused of charges that they illegally tested the gender of her foetuses and subsequently pressured her to terminate her pregnancy. BBC Hindi's Vineet Khare finds out more.
Dr Mitu Khurana says she is still to recover from the "shock" of losing a seven-year court battle against her ex-husband and his family.
In 2008, Dr Khurana filed a case against her husband Dr Kamal Khurana, his mother and another member of his family, for allegedly colluding with a hospital official to determine the gender of her foetuses while she was pregnant in 2005, and then pressurising her to undergo an abortion once it was discovered she was carrying girls.
She told the court that she had refused to undergo the abortion, but had been beaten and denied food as a result, after which she slipped into "severe depression."
Her husband Dr Kamal Khurana has denied the charges and told the BBC that "justice has been served by the court".
"This case has cost me heavily. I lost my father. My career is in trouble. I cannot meet my children. I lost my family. I don't know what she wants," he said.
The Khurana case
Dr Mitu Khurana married Dr Kamal Khurana in November 2004.
She alleged that once she was pregnant in 2005, she resisted pressure from her husband and in-laws to undergo tests to determine the gender of her foetuses.
She says her in-laws exploited her allergies to make her sick so that they could use it as a pretence to carry out a gender test on her.
Once the test was carried out, she alleged that there was pressure on her to abort the foetuses, which she resisted.
When the girls were born, she said, they were shunned and she was subjected to domestic violence.
In 2008, she says she discovered a document from the hospital she was taken to, dated 2005, which she said was a "foetal ultrasound and indicative of the gender of the foetuses"
Dr Kamal Khurana is still facing charges of domestic violence and allegations that he hacked his wife's email.
His lawyer PS Singal called the verdict a "well-reasoned" order "based on facts" that showed it was a case of "misuse of the law to settle a score with in-laws". "
"The law is there because female foeticide does happen, but the law has been misused in this case. There was an attempt to settle scores with the husband and his family. The alleged incident happened in 2005. Why did it take her so long to register a case, especially when she herself belongs to a family of doctors? How can a doctor not go through her treatment papers? Checks and balances should be there in law so that innocents are not harassed," he told the BBC.
The court order said that there were "certain lacunae in circumstantial evidence on which (the) complainant is relying", that there was no "witness before whom sex (gender) was disclosed" and no "document on which sex (gender) of the child was mentioned".
Dr Mitu Khurana has vowed to continue her fight for justice
The verdict also notes that "it is highly improbable that a reasonable man will keep safely any document which is of incriminating nature against him instead of destroying the same."
The ruling has come as a body blow to Dr Khurana who is now raising her twin girls on her own.
"This order has shut the door for women for whom it could have set a precedent. Our fight for justice has only become bigger and longer," the 39 year old hospital administrator-turned-female rights activist told the BBC.
She plans to appeal the order.
Dr Khurana's case made headlines in both national and international media, and she has since campaigned extensively against the widespread practice of killing off female foetuses in India.
Missing girls
According to the 2011 population survey, India has only 918 girls for every 1,000 boys under six years of age.
India's "missing girl children" have become a huge area of concern, but even tough laws have not stopped illegal ultrasound testing.
Foetal gender testing is illegal under the 1994 Pre-natal Diagnostic Techniques (PNDT) Act but that has not stopped the termination of an estimated half a million female foetuses each year. In 2002, the law was amended to include gender selection even at the pre-conception stage.
"The responsibility was on the accused, and not us to prove that no gender test took place. We will definitely pursue the matter in a higher court," Dr Mitu Khurana's lawyer Amarnath Agarwal told the BBC.
The twins soon after they were bornImage copyrightDr Mitu Khurana
Image caption
Dr Mitu Khurana is bringing up her daughters, now aged ten, by herself
Dr Sabu George, widely considered to be India's leading activist against female foeticide, told the BBC that she believed the facts in the Mitu Khurana case were strongly in her favour.
"This reflects the reality of the country where gender testing is not seen as a crime, either by the doctors or the people. And that is frightening. About half a million girls are eliminated each year, my fear is that this figure could go up to a million," she told the BBC.
Pre-natal sex test case: Man and family let off by court
Pre-natal sex test case_ Man and family..
Pre-natal sex test case: Man and family let off by court
Dr Mitu, who is a paediatrician, became a known face after appearing on Aamir Khan's TV show Satyamev Jayate, in an episode that dealt with female infanticide. Sharing her story with viewers on television, Mitu had alleged that her husband and in-laws conducted a pre-birth sex detection exam without her consent, and later forced her to abort.
A Delhi court on Tuesday acquitted a man and his family members, who were accused of getting a pre-birth sex determination test conducted on the man's wife before asking her to abort the foetus. The court observed that the evidence produced before it had gaps and hence, no case stood against the accused. Dr Mitu Khurana, the complainant, has now decided to move the sessions court or the Delhi High Court to challenge the order.
Dr Mitu, who is a paediatrician, became a known face after appearing on Aamir Khan's TV show Satyamev Jayate, in an episode that dealt with female infanticide. Sharing her story with viewers on television, Mitu had alleged that her husband and in-laws conducted a pre-birth sex detection exam without her consent, and later forced her to abort. Later, she decided to file a complaint before the court while becoming the first woman in the country to file a case against her in-laws under the PNDT Act.
"We would not stop fighting for the cause and will move the sessions court or Delhi High Court," said AN Aggarwal, the counsel for Dr Mitu Khurana. "I have given 10 years of my life to this case. This is not just my story but of several women who are yet to muster courage to stand up for their daughters. While the PNDT Act has existed since ages, it is yet to be implemented properly," the complainant told Mail Today.
The PNDT Act provides for a maximum punishment of three-year jail term and a penalty of up to Rs 50,000.
INDIAN RADIOLOGICAL AND IMAGING ASSOCIATION (IRIA) vs UNION OF INDIA AND ANR
RSE17022016CW69682011
W.P.(C) Nos.6968/2011, 2721/2014 & 3184/2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 17th February, 2016
+ W.P.(C) 6968/2011
INDIAN RADIOLOGICAL AND IMAGING ASSOCIATION (IRIA) ..... Petitioner
Through: Mr. Prateek Dahiya, Adv.
Versus
UNION OF INDIA AND ANR ..... Respondents
Through: Mr. Sanjay Jain, ASG with Mr.Jasmeet Singh, CGSC, Ms. Kritika,
Mr. Vidur Mohan, Ms. Shreya Sinha & Mr. Srivats, Advs. for UOI.
Mr. T. Singhdev and Mr. Vishu Agarwal, Advs. for MCI.
AND
+ W.P.(C) 2721/2014
INDIAN MEDICAL ASSOCIATION ..... Petitioner
Through: Mr. Jayant Bhushan, Sr. Adv. with Mr. Netesh Jain, Adv.
Versus
UNION OF INDIA ..... Respondent Through: Mr. Sanjay Jain, ASG with Mr.
Jasmeet Singh, CGSC, Ms. Kritika, Mr. Vidur Mohan, Ms. Shreya Sinha
& Mr. Srivats, Advs. for UOI. Mr. T. Singhdev and Mr. Vishu Agarwal, Advs. for MCI.
W.P.(C) Nos.6968/2011, 2721/2014 & 3184/2014 Page 2 of 83
AND
+ W.P.(C) 3184/2014
SONOLOGICAL SOCIETY OF INDIA ..... Petitioner
Through: Petitioner-in-person.
Versus
UNION OF INDIA & ANR. ..... Respondents Through: Mr. Sanjay Jain, ASG with Mr.
Jasmeet Singh, CGSC, Ms. Kritika,
Mr. Vidur Mohan, Ms. Shreya Sinha
& Mr. Srivats, Advs. for UOI.
Mr. T. Singhdev and Mr. Vishu
Agarwal, Advs. for MCI.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J.
W.P.(C) No.6968/2011.
1. The petitioner claims to be a Society registered under the Societies Registration Act, 1860 established with the aim and objective inter alia to promote the study and practice of radio-diagnosis, ultrasound, CT, MRI and other imaging modalities and, having more than 8600 radiologists and imaging experts having recognised post-graduate degrees in the field of radio-diagnosis and imaging recognised by the Medical Council of India (MCI) as its members. The petition is filed contending: W.P.(C) Nos.6968/2011, 2721/2014 & 3184/2014
(i) that to overcome the growing problem of sex-selective termination of pregnancy of female foetuses after determining sex of the foetus by using pre-natal sex determination techniques, the Preconception and Pre-natal Diagnostic Techniques (Prohibition of Sect Selection) Act, 1994 (PNDT Act) was enacted with the objective of prohibition of sex selection and for regulation of misuse of pre-natal diagnostic techniques and the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996(PNDT Rules) framed thereunder for matters connected therewith;
(ii) that though the aim of the Act was to restrict the use of ultrasound machine by allowing use thereof only by qualified individuals, who could be monitored, the same has had the opposite effect of enlarging the category of persons authorised to use and
operate ultrasound machines;
(iii) that the PNDT Act, owing to its lackadaisical and ineffective implementation, has failed to serve the purpose and the child sex ratio continues to fall;
(iv) that this lead to the filing of W.P.(C) No.301/2000 titled Centre for Enquiry Into Health and Allied Themes (CEHAT) Vs. Union of India in the Supreme Court of India and vide order dated 4th May, 2001 wherein, directions were issued
(i) to the Central Government to create public awareness against the practice of pre-natal determination of sex and female foeticide through appropriate releases / programmes in the electronic media;
(ii) to implement with all vigour and zeal the PNDT Act and PNDT Rules and to strictly adhere to the rule as to the periodicity of meetings of the Advisory Committees constituted under Section 17(5) of the PNDT Act;
(iii) to the Central Supervisory Board constituted under the Act to review and monitor the implementation of the Act and to seek quarterly returns from the States / Union Territories and to make recommendations as may be required as per the exigencies of
the situation; and,
(iv) to the Appropriate Authorities under the Act to take prompt action with respect to violators of the Act;
(v) that the aforesaid directions of the Supreme Court also did not serve the purpose, as was lamented by the Supreme Court in the subsequent order dated 10th September, 2003 in the aforesaid petition;
(vi) that the aforesaid resulted in amendment to the Act and the Rules being mooted and certain amendments were carried out to the Act with effect from 14th February, 2003;
(vii) that Section 2(p) of the amended PNDT Act defines a “sonologist or imaging specialist” as:
(p) sonologist or imaging specialist” means a person who possesses any one of the medical qualifications recognised under the Indian Medical Council Act, 1956 (102 of 1956) or who possesses a post-graduate qualification in ultrasonography or imaging techniques or radiology. but there is no post-graduate qualification, neither in the field of ultrasonography nor in the field of imaging techniques which is recognised by the respondent No.2 MCI;
(viii) that similarly the amended Rule 3(3)(1) of the PNDT Rules entitles the following persons to set up a genetic clinic / ultrasound clinic / imaging centre
3.3.(1) Any person having adequate space and being or employing—
(a) Gynaecologist having experience of performing at least 20 procedures in chorionic villi aspirations per vagina or per abdomen, chorionic villi biopsy, amniocentesis, cordocentesis foetoscopy, foetal skin or organ biopsy or foetal blood sampling etc.
under supervision of an experienced gynaecologist in these fields, or
(b) a Sonologist, Imaging Specialist, Radiologist or Registered Medical Practitioner having Post Graduate degree or diploma or six months training or one year experience in sonography or image scanning; or
(c) a medical geneticist, may set up a genetic clinic/ultrasound clinic/imaging centre.
but there is no qualification recognised by MCI in the field of sonography or image scanning and the same enables registered medical practitioners, who as per MCI are not qualified, to set up the sonographic clinic or an imaging centre;
(ix) that representations to the aforesaid effect were made to the Central Supervisory Board constituted under the Act which though had been deliberating thereon, had failed to take any decision;
(x) that though the Rules aforesaid also speak of a six months training in sonography or image scanning but no formal training programme has been devised;
(xi) that the PNDT Act is not concerned with conferring or recognising medical qualifications, the sole repository whereof is the respondent No.2 MCI.
2. The petition seeks a declaration:
(a) that Section 2(p) of the PNDT Act to the extent it recognises a person possessing a post-graduate qualification in ultrasonography or imaging techniques as bad inasmuch as there is no post-graduate qualification in ultrasonography or imaging techniques recognised by the MCI;
(b) that Rule 3(3)(1)(b) of the PNDT Rules to the extent it permits sonologists, imaging specialists or registered medical practitioner having six months training or one year experience in sonography or image scanning to set up ultrasound clinics or imaging centres, is unconstitutional, as there is no qualification in sonography and image scanning recognised under the Indian Medical Council Act, 1956 (MCI Act).
We may notice that though averments in the petition are also made with respect to the appointments under Section 17 of the Act of District Magistrates / District Collectors as District Appropriate Authorities and of the meetings of the Central Supervisory Board
constituted under the PNDT Act but at the time of hearing, no arguments were addressed in that behalf and we as such do not deem it appropriate to deal therewith.
3. The respondent No.1 Union of India (UOI) has filed a counter affidavit to this petition pleading
(a) that though PNDT Act is a central legislation committed to providing a legal framework for intensifying efforts to curb the practice of sex determination but the implementation of the Act lies primarily with the States which are expected to enforce the said Act through the statutory bodies in the States constituted under the Act;
(b) that the MCI Act recognises the medical qualification of Doctor of Medicine
M.D. (Radio Diagnosis) which is registered as M.D. (Radio Diagnosis) / Diploma in Radio Diagnosis (DMRD);
(c) imaging techniques and ultrasonography is a critical part of the discipline of M.D. (Radiology) / DMRD to equip a medical professional to practice, teach and do research in the broad discipline of radiology including ultrasound;
(d) that the MCI has submitted guidelines enumerating the minimum criteria regarding qualification, training, accreditation of training institutes, for determining who should be recognised as qualified to undertake ultrasound test and have valid registration under the PNDT Act;
(e) that the Central Government is in the process of finalizing the requirements in terms of qualifications and training required to be registered as a sonologist and the same shall be explicated as amendment to Rule 3(3)(1)(b) of the PNDT Rules;
(f) that the Central Supervisory Board had considered the representations and the suggestions and had not considered any amendment to Section 2(p) of the PNDT Act to be necessary and was of the opinion that the purpose could well be achieved by amending Rule 3(3)(1)(b) of the Rules; and,
(g) that the Central Supervisory Board has decided that in view of shortage of doctors with post-graduate qualification on the one hand and the growing demand of ultrasound services on the other, amendment of Section 2(p) of the PNDT Act is unnecessary and the purpose could be served by amendment of Rule 3(3)(1)(b) by laying down the criteria with regard to educational qualification for eligibility for training, length and content of training, accreditation of training institutions as well as the experience.
4. The petitioner in its rejoinder has pleaded that though ultrasonography is a part of the curriculum in MD in Radiology but is not a separate discipline and is not so recognised by the MCI and Rule 3(3)(1)(b) is therefore admittedly illegal, inasmuch as there is no recognised discipline of medicine known as sonologist and there is no post-graduate qualification in ultrasonography or imaging techniques recognized by the MCI. It is further pleaded that the post-graduate training programme for MD in radio
diagnosis and DMRD is not a post-graduate qualification, either in the field of ultrasonography or imaging techniques.
5. The respondent No.2 MCI failed to file any counter affidavit inspite of opportunity.
6. The disposal of the petition was delayed for the reason of the counsel for the Union of India (UOI) from time to time informing that a Transfer Petition has been filed before the Supreme Court and notice thereof had been issued. However, when inspite of waiting for sufficiently long time no order for transfer was received and on the contention of the petitioner that the matter before the Supreme Court was distinct, the hearing of the petition was begun.
7. During the pendency of the petition, the PNDT Rules were amended vide Notification dated 9th January, 2014.
W.P(C) No.2721/2014.
8. This petition is filed impugning the Notification dated 9th January, 2014 amending Rule 3(3)(1)(b) of the PNDT Rules as well as the amended Rule. The amended Rule 3(3)(1)(b) is as under:-
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;
(c) ....
9. It is the contention of the petitioner
(a) that the aforesaid Rule is contrary to the PNDT Act as it contains an additional requirement of a six months training to be registered as a sonologist when the Act does not contain such an additional requirement and enables an MBBS doctor to be registered as a sonologist; the Rule is thus beyond the Act;
(b) that Rule 6 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) (Six Months Training), Rules, 2014 (Six Months Training Rules) also notified vide the same Notification dated 9th January, 2014 is as under:-
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 month 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 months training, as provided under these rules, for the purpose of renewal of registrations.
It is argued that thus the said Rule not only prescribes six months training to register as a sonologist but even requires existing sonologist to qualify a competency based assessment to renew the registration and consequently provides that if the existing sonologist fails to clear the said assessment, he wouldbe required to undertake the complete six months training. It is contended that the Rule is unreasonable and illogical – the curriculum for graduation of MBBS doctors includes specific knowledge and skills in the field of radio-diagnosis and imaging and the knowledge and skills set out in the Six Months Rules is merely a repetition of the knowledge and skills set out in the curriculum of MBBS doctors. It is argued that it is unreasonable and illogical for an MBBS doctor to undergo additional six months training under the Six Months Training Rules for the same knowledge and skills that he has already gained in his curriculum;
(c) that though as per PNDT Act, MBBS doctors are sonologist but the Authorities under the said Act do not register the MBBS doctors as sonologist compelling them to take additional six months training or one year experience and which is not required by the Act; and,
(d) that now-a-days ultrasound is not being treated as a specialty but as a diagnostic tool like stethoscope and many institutions are running courses for non-medical persons to do echocardiography etc.
10. It is the stand of the respondent UOI in its counter affidavit
(i) That the impugned Notification dated 9th January, 2014 was preceded by a consultative process pursuant to the judgment dated 5th July, 2010 of a Single Judge of this Court in W.P.(C) No.6654/2007 titled Dr. K.L. Sehgal Vs. Office of District Appropriate Authority highlighting the need for prescribing qualifications of a person seeking to run diagnostic clinics and for prescribing the qualification, training and experience to be recognised and registered as a sonologist.
(ii) That to the said consultative process MCI was also privy and proposed a framework of minimum criteria regarding qualification, training, accreditation of training institutions and the contents of the training. The framework proposed by MCI was re-evaluated by a broad based Core Committee and which in turn appointed an Expert Committee. The recommendations of the Expert Committee and the Core Committee were considered by the Central Supervisor Board constituted under the PNDT Act and only thereafter the amendment to Rule 3(3)(1)(b) and the Six Months Training Rules were notified.
(iii) That neither Rule 3(3)(1)(b) as amended vide Notification dated 9th January, 2014 nor the Six Months Training Rules contravene any provision of the PNDT Act.
(iv) That the Secretary General of the petitioner is also a notified member of the Central Supervisory Board but the petitioner has not acted proactively in the matter.
(v) That the Six Months Training Rules would ensure better quality among all member of profession by making the six months training mandatory and uniform throughout the country for the registered medical practitioners.
(vi) That registered medical practitioners possessing any of the medical qualification as prescribed in Section 2(h) of the MCI Act may set up a genetic clinic / ultrasound clinic / imaging centre based on their MCI recognised qualification and subsequent mandatory six months training in sonology as prescribed in Six Months Training Rules.
(vii) That though Rule 3(3)(1)(b) supra prior to its amendment w.e.f.9th January, 2014 also mentioned six months training but did not specify the nature and duration of six months training,necessitating amendment thereof.
(viii) That the amendment aforesaid also became necessary in view of the observations of this Court in K.L. Sehgal supra and has been effected after a detailed consultative process.
(ix) That the amended Rule 3(3)(1)(b) is within the rule making power of the Central Government under Section 32 of the PNDT Act and the Notification dated 9th January,2014 was duly laid on the Table of both the Houses of Parliament.
(x) Rule 6(2) of the Six Months Training Rules exempts those registered medical practitioners from undertaking the six months training who are having experience of one year or more in ultrasonography and who had already undergone six months training, provided they pass the prescribed competency based assessment. To conduct such competence based test for registered medical practitioners having one year experience or six months training, the States have been given time till 1st January, 2017, by which time the States are expected to complete the assessment and fulfil the training requirements of the registered medical practitioners.
(xi) The Six Months Training Rules came into force w.e.f. 9th January, 2014 in case of new registrations only; however earlier registrants will have to either undergo training or if claim exemption will have to qualify the competency based test on or before 1st January, 2017. Liberty has thus been provided for all registrants prior to 9th January, 2014 and the amended Rule 3(3)(1)(b) and the Six Months Training Rules are thus not
illogical or arbitrary.
(xii) The knowledge and skill set out in the Six Months Training Rules are not a repetition of the knowledge and skills set out in the graduate medical curriculum for MBBS doctors. The syllabus set out for the MBBS doctors is quite general in nature, while the curriculum as prescribed in the Six Months Training Rules is specific and known as “Fundamentals In Abdomino Pelvic Ultrasonography: Level-one 6 Months
Course for MBBS doctors”. The radiology curriculum for MBBS doctors is mostly theoretical, providing for only 30 hours of clinical posting in radiology. On the other hand the curriculum prescribed in the Six Months Training Rules contains theory as well as practical training of 300 hours duration. Further, MBBS curriculum clubs the doctors in terms of central development, only to devise appropriate diagnostic procedures in specified circumstances but not proficient in conducting such diagnostic procedures. On the contrary the curriculum under the Six Months Training Rules enables the registered medical practitioners to be proficient in conducting
the ultrasonography as a diagnostic tool.
(xiii) The training will equip the registered medical practitioners professionally and would also sensitise them to the declining trend of child sex ratio and their responsibility towards it as an important stakeholder; and,
(xiv) Easy access to ultrasound diagnostic techniques since the early 1980s has contributed to the increased opportunity of sex selection with increased incidences of female foeticide resulting in the rapid decline in the child sex ratio.
W.P.(C) No.3184/2014.
11. This petition is filed by a society established with the aim and objective to promote awareness in the field of diagnostic ultrasound and to educate and spread awareness amongst general public against female foeticide, and with medical professionals as its members.
12. The cause of action for the said petition is the Circular dated 27th March, 2014 of the respondent No.2 Directorate of Family Welfare, Govt. of NCT of Delhi (GNCTD) and on the basis whereof it is averred that registration / renewal of registration is not being granted to several members of the petitioner running ultrasound clinics.
13. It is the contention of the petitioner,
(i) that though this court in K.L.Sehgal supra clarified that as long as the person concerned possesses one of the medical qualifications recognised under the MCI Act, he could be a sonologist and that the word “or” between the words “...Indian Medical Council Act, 1956 (102 of 1956)” and “who possess a post graduate qualification...” in Section 2(p) of the PNDT Act is not to be read as “and”, the respondents are insisting upon persons holding medical qualification recognised by the MCI also either underging a six months training or passing a competency test;
(ii) that Rule 3(3)(1)(b) as amended with effect from 9th January, 2014 is contrary to Section 2(p) of the Act as interpreted by this Court in K.L. Seghal supra;
(iii) that various members of the petitioner society who are registered medical practitioners in terms of Section 2(m) of the PNDT Act and are sonologist in terms of the definition in Section 2(p) of the Act as interpreted by this Court in K.L. Sehgal, are not being granted registration / renewal of registration of their ultrasound clinics citing the amendments dated 9th January,2014 to the PNDT Rules and the Circular dated 27th March, 2014 supra;
(iv) that the amendment to Rule 3(3)(1)(b) of the PNDT Rules is thus in violation of the judgment of this Court in K.L. Sehgal supra;
(v) that denial of registration / renewal of registration under the PNDT Act to the medical practitioners who are sonologist in terms of Section 2(p) of the Act is in restraint of their fundamental right to carry on lawful trade;
(vi) that the amendment of Rule 3(3)(1)(b) has retrospective application inasmuch as, even those MBBS doctors who are sonologist in terms of Section 2(p) of the PNDT Act and have been practising ultrasound since decades and have international recognition in the field of ultrasound have to appear in competency test, while all the post graduates have been exempted, even though many of them have no exposure to ultrasound at any stage;
(vii) that the amended Rule 3(3)(1)(b) is discriminatory and violative of Article 14 of the Constitution of India as all the post-graduates have been exempted from undertaking six months training, even though many of the Post Graduate (PG) speciality courses vis. physiology, microbiology, biochemistry, pathology etc. do not have ultrasound training in the curriculum;
(viii) that though in terms of the amended Rule 3(3)(1)(b), all registered medical practitioners having PG degrees / diplomas in any speciality can open and run ultrasound clinic and get registered under the PNDT Act, but as per the Circular dated 27th March, 2014 only post-graduate degree / diploma holders in obstetrics, gynaecology radiology will be entitled for registration under the PNDT Act;
(ix) that ultrasound is a modality like modern day stethoscope; (x) that no other modality training like ECG, laparoscope etc. require PG Entrance Exam;
(xi) that in India the doctor-patient ratio is very poor; in many places sonologist patient ratio is one for a population of five lakhs;
(xii) that the impugned notification will further lead to shortage of sonologist and which will not be in the interest of the patients; and,
(xiii) that in terms of the judgment of this Court in K.L. Sehgal supra, the change would only be prospective and not retrospective.
14. The petition (I) seeks a mandamus to the Union of India and Directorate of Family Welfare of GNCTD to grant registration / renewal of registration under the PNDT Act to those medical practitioners who come under the realm of definition of sonologist in terms of Section 2(p) of the PNDT Act; and, (II) seeks quashing of the amendment dated 9th January, 2014 to Rule 3(3)(1)(b) of the PNDT Rules and notifying the Six Months Training Rules to the extent inconsistent with the definition of sonologist
under Section 2(p) of the PNDT Act.
15. UOI filed its counter affidavit dated 22nd September, 2014 to this petition pleading
(a) that the child sex ratio has been continuously declining all over India including in the rural and far flung areas; the child sex ratio presently is the lowest since independence;
(b) that to overcome the malady of termination of pregnancy after determining the sex of the foetus by using pre-natal techniques, the PNDT Act and PNDT Rules were enacted;
(c) that though Rule 3(3)(1)(b) as it stood prior to its amendment with effect from 9 th January, 2014 mentioned six months training and one year experience but the institutions / individuals from which /whom this experience / training was to be obtained were not specified;
(d) that this resulted in numerous ultrasonographic centres flourishing across the country making ultrasonography tests without standardised training / curriculum and
resulting in mushrooming ultrasonographic centres by ill-qualified/poorly trained sonologist resulting in unethical practises throughout the country;
(e) observations to this effect were made by this Court in K.L. Sehgal;
(f) that in compliance with the observations in K.L. Sehgal, the PNDT Rules were amended and the Six Months Training Rules notified with effect from 9th January, 2014;
(g) denying that there is any retrospectivity in the amendment with effect from 9th January, 2014;
(h) denying that there is any discrimination in exempting the registered medical practitioners having post-graduate degree / diploma in radiology / imaging or sonography from the six months training; it is stated that all those having PG degree / diploma in obstetrics, gynaecology are also exempted from the said training;
(i) that the amendments with effect from 9th January, 2014 apply only for new registration; however old sonologist have been given time to pass the competency test on or before 1st January, 2017.
16. The respondent No.2 Directorate of Family Welfare, GNCTD in its counter affidavit has pleaded that by virtue of the amendment with effect from 9th January, 2014, doctors possessing MBBS degree who were practising as sonologist by claiming to have six months training or having one year experience from any unregulated hospital / training institute / individual doctor, would henceforth be required to satisfy the requirements of Rules 6 & 7 of the Six Months Training Rules inter alia by undergoing a prescribed 300 clock hours curriculum course to be spread over six months to be conducted by identified accredited institutions recognised either by the MCI or the National Board of Medical Speciality or centres of excellence established by an Act passed by the Parliament; however those who are qualified as PG in radiology and gynaecology/obstetrics will continue to be eligible for registration as they are exempted from training.
CONTENTIONS.
17. The counsel for the petitioner in W.P.(C) No.6968/2011 argued
(i) that there is no post-graduate qualification in ultrasonography or imaging techniques or radiology as mentioned in Section 2(p) of the Act;
(ii) that there is no qualification as a sonologist or imaging specialist as mentioned in Rule 3(3)(1)(b); (iii) support in this regard was drawn from the reply dated 1st June, 2011 of the MCI to a query under the Right to Information Act, 2005, to the effect that MCI does not recognise certificate course issued by the radiologist for ultrasonography training.
18. The senior counsel for the petitioner in W.P.(C) No.2721/2014 contended
(i) that prior to coming into force of the PNDT Act, even a person having a decree of MBBS, not necessarily of M.D. (Radiology) could own and operate a ultrasound machine;
(ii) that Section 2(p) of the Act also includes in the definition of sonologist or imaging specialist, every such person who holds a medical qualification recognised by the MCI, again recognising persons holding the MBBS qualification as sonologist and imaging specialist;
(iii) that there is no post-graduate qualification in ultrasonography or in imaging techniques;
(iv) that under Section 32 of the Act the power of the Central Government to make Rules extends only to make rules for minimum qualifications of persons employed at the registered genetic counselling centre, genetic laboratory or genetic clinic and not to make rules for persons employed at ultrasound clinics;
(v) that the technique of ultrasound is used for diagnostic purpose qua various organs and not only for sex determination and thus all clinics using ultrasound machines would not qualify as genetic clinics;
(vi) instance is given of specialist hospitals / clinics dealing with specific organs, say heart, lung or liver and it was contended that they also use ultrasound machine but can by no stretch of imagination be called a genetic clinic;
(vii) that the requirement, in Rule 3(3)(1)(b) as amended with effect from 9th January,
2014, of six months training can only be qua registered medical practitioners as defined in Rule 2(ee) of the Drugs and Cosmetics Rules, 1945 and cannot possibly be qua those who qualify as sonologist within the meaning of Section 2(p) of the Act;
(viii) alternatively, Rule 3(3)(1)(b) has to be confined to the genetic clinics only and cannot be extended to ultrasound clinics; all ultrasound clinics are not genetic clinics; those who have been practising as a radiologist or have been using ultrasound for tens
of years cannot be asked to undergo six months training or take any test, as the same cannot take the place of their experience of decades;
(ix) that the amendment of Rule 3(3)(1)(b) w.e.f. 9th January, 2014 takes away the one
year experience in sonography or image scanning as existed earlier and thus Rule 6(2) of the Six Months Training Rules is bad; and,
(x) that under Rule 8 there was/is a right of renewal of registration; the amendment w.e.f. 9th January, 2014 takes away the said right; reliance is placed on G.P. Singh’s
Interpretation of Statues to urge that interpretation rendering certain words otiose, cannot be adopted and on Dr. Indramani Pyarelal Gupta Vs. W.R. Nathu AIR 1963 SC 274 laying down that the Central Government as a delegate of the legislature, without being specifically empowered can only make Rules having prospective operation and not with retrospective effect.
19. At this stage, the counsel for the petitioner in W.P.(C) No.6968/2011 contended that PNDT Act was concerned with the misuse of the techniques of ultrasound for sex determination but has ended up, permitting all MBBS Doctors to conduct ultrasound. However on enquiry, whether prior thereto, there was any bar on MBBS Doctors doing ultrasound or reporting on ultra sound procedure, no reply was forthcoming.
20. The office bearer of the petitioner in W.P.(C) No.3184/2014 arguing in person addressed the same arguments, as the senior counsel for the petitioner in W.P.(C) No.2721/2014 and contended that all MBBS Doctors, without any post-graduate qualification in radiology, are in any case entitled to conduct ultrasound and if it were to be held that only those with postgraduate qualification in radiology can conduct ultrasound, the same would require frequent referrals to such specialist and increase in the cost of treatment.
21. The senior counsel for the petitioner in W.P.(C) No.2721/2014 resuming his arguments contended that the provisions of six months training for a person holding qualification recognised by the MCI is otiose. Reliance in this regard was placed on Academy of Nutrition Improvement Vs. Union of India (2011) 8 SCC 274. It was contended that the issue of misuse of technology for sex determination is a moral one and has nothing to do with training. It was further contended that since the Act is intended to prevent sex determination, it cannot possibly apply to a Heart Institute. We were informed that owing to the respondents interpreting the term genetic clinic
as meaning all places where ultrasound machines are kept, reputed and well known
medical professions also having an ultrasound machine or even a portable equipment in their clinic though intended for use in their respective specialisations but capable of determining sex are forced to get themselves registered as a genetic clinic and to comply with the provisions of the Act and the Rules and which is not only cumbersome but also leaves their patients nonplussed on seeing the proclamations in their clinic in
compliance of the Act and the Rules as if it is a genetic clinic. We were informed that owing thereto several doctors are opting not to keep a ultrasound machine or other such alternate portable equipment in their clinics, much to their handicap and to the inconvenience of their patients.
22. The learned ASG defending the challenge argued
(i) that the fountainhead for the amendments of the year 2014 to the Rules is the
judgment of this Court in K.L. Sehgal’s case;
ii) attention was invited to Section 16 of the Act prescribing the functions of the Central Supervisory Board constituted under the Act and the minutes of the meetings of the Board leading to the amendment;
iii) the amendments of the year 2014 do not become retrospective by requiring those practising ultrasonography to either take the competency test or undergo six months training;
iv) attention was drawn to Statement of Objections & Reasons of the PNDT Act;
v) that as per the Act, any person can open a genetic clinic, provided a qualified
person is employed therein;
vi) that the explanation to Section 2(d) of the Act applies to a place other than vehicle also;
vii) that the challenge in all the petitions is to the six months training and none should have any objection to obtaining an added qualification;
viii) that the wisdom of the policy is not to be gone into by the court;
(ix) that the un-amended Rule 3(3)(1)(b) also provided for training though none was prescribed and the amendment is intended to end un-channelised system of training of
sonologist; and,
(x) better training will raise standards.
23. The written submissions filed have also been perused.
DISCUSSION.
24. We had during the hearing enquired from the counsels whether it is technically possible to fit/load ultrasound machine with a device/programme disabling the use thereof for sex determination or for scanning uterus.
25. We were however told that the same is not possible.
26. We had further enquired whether the respondents are open to taking a
declaration, from medical practitioners though desirous of or in need of
using an ultrasound machine, portable or otherwise, for purposes other than
sex determination, to the effect that the same will not be used for scanning
uterus or otherwise for sex determination and to exempt such practitioners
from the provisions of the Act/Rules relating to training/competency test/
maintenance of records etc, though otherwise remaining liable for surprise
inspections/raids etc and penalties for violations of the Act.
27. However no such concession was forthcoming from the side of the Government; rather the learned ASG suggested that the subject is a sensitive one which is seized of by the Supreme Court.
28. We have considered the controversy in totality.
29. We must say, we have been left wondering, what, the questions as have been raised before us, have to do with prevention of misuse of prenatal diagnostic techniques for sex determination, which was/is the only purpose / objective of the enactment of PNDT Act. For meeting the said objective/purpose, we fail to understand what difference it makes, whether the sonologist or imaging specialist i.e. a person who can use and operate an ultrasound machine, is a mere MBBS or has a Post Graduate qualification in medicine or has experience of one year or has undergone six months training. The PNDT Act does not owe its enactment to the poor or useless or inaccurate diagnostic reports of ultrasound tests and resultant need to prescribe the qualifications of persons who can operate, use, read and report the outcome of the said diagnostic procedure. If it was felt that for practising medicine with the aid of an ultrasound machine, none of the medical qualifications contained in the Schedule to the MCI Act are sufficient or that only those with one or more of the said qualifications are competent to so practise, the MCI Act was/is in existence to serve the said purpose and there was no need for a new enactment to serve the said purpose. The PNDT Act owes its existence solely to the falling ratio of female child as against the male child and the cause whereof was found to be misuse of pre-natal diagnostic techniques for sex determination, in turn leading to female foeticide.
30. A perusal of the Statement of Objects & Reasons of the PNDT Act indeed shows that it was intended to prohibit pre-natal diagnostic techniques for determination of sex of foetus leading to female foeticide and to prevent abuse of techniques discriminatory against female sex and affecting dignity and status of women, by regulating the use of such techniques and to provide deterrent punishment to stop such inhuman act. The enactment was to achieve the objectives of:
(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.
The preamble of the Act is as under:
An Act to provide for the prohibition of sex selection, before or after conception, and for regulation of pre-natal diagnostic techniques for the purposes of detecting genetic abnormalities or metabolic disorders or chromosomal abnormalities or certain congenital malformations or sex-linked disorders and for the prevention of their misuse for sex determination leading to female foeticide and for matters connected therewith or incidental thereto.
31. An overview of the PNDT Act also shows all provisions thereof to be to serve the purpose/objective only of preventing misuse of pre-natal diagnostic techniques for sex determination. The PNDT Act is found by us to have been enacted
(i) to prohibit/make sex determination and sex selection an offence;
(ii) to prohibit sale of ultrasound and other machines capable of sex selection save to persons registered under the Act;
(iii) to prohibit conduct/use of pre-natal diagnostic techniques except for detection
of prescribed abnormalities and to prescribe the conditions (including
maintenance of records) subject to which the prenatal diagnostic techniques
shall be used for such limited purpose;
(iv) to constitute Central Supervisor and State Supervisory Boards to advise the Central Government on policy matters relating to use of pre-diagnostic techniques and against their misuse, to monitor implementation of the Act and recommend changes in the Act and the Rules, to create public awareness, to lay down code of conduct to be observed in places where ultrasound machines are kept etc.;
(v) to constitute Appropriate Authorities to grant registration under the Act and to enforce the provisions of the Act. Though Section 32 of the Act empowering the Central Government to make Rules for carrying out the provisions of the Act empowers the Central Government to make rules to provide for the minimum qualification for the persons employed at Genetic Counselling Centres, Genetic Laboratory or Genetic Clinic i.e. a place where ultrasound or like machine is kept but that in our opinion would only entitle the Central Government to provide that only persons holding any of the medical qualifications recognised by MCI, will be so employed (because ultrasound and like machines are medical tools) but would not entitle the Central Government to prescribe or coin new or additional qualifications.
We say so because that is not the provision in the Act and the Rules under Section 32 can be made only for carrying out the provisions of the Act. Once the PNDT Act is not found to be dealing with medical education, the power to make rule prescribing minimum qualification cannot be understood as a power to establish a qualification but has to be necessarily understood as power to prescribe only those qualifications which are recognised by MCI. This is more so since the Act in Section 2(m) and (p) expressly refers to qualifications recognized by MCI.
32. We are unable to find any provision in the PNDT Act empowering any of the bodies constituted thereunder i.e. the Central Supervisory Board or the State Supervisory Boards or the Appropriate Authorities or the Advisory Committees or even the Central Government to prescribe the qualifications for practising medicine with the aid of an ultrasound machine or to prescribe the nature and content i.e. curriculum of the said qualification or the duration of the qualification. The task of prescribing the
education and training without which a person cannot practise in the field of
medicine is a highly technical and important task requiring in depth knowledge of what all practise in that field of medicine entails as it is then only that that the person before being permitted to practise therein can be equipped therewith. It is inconceivable that without any whisper even in any of the provisions of the Act in this regard, the Act could be intended to be or can be held to be concerned with prescribing the qualification and course content of that qualification for practising medicine with the aid of or through the medium of ultrasound machine. The said power cannot be generally inferred. In contradistinction, the MCI Act, enacted to provide for the reconstitution of the Medical Council of India and the maintenance of a Medical Register for India and for matters connected therewith,
a) in sub Sections 10A, 10B, 11, 12, 13, 14 and 20 makes detailed provisions qua
medical qualifications which are/can be recognised,
b) vide Section 15, permits names of any those holding recognised medical qualifications to be entered in the Medical Register to be maintained and confers right in them only to practise medicine,
c) vide Section 16 empowers the MCI to ensure that the medical colleges/institutions are imparting requisite medical education and holding examinations in the courses for which recognition has been given to them,
d) vide Section 19 provides for withdrawal of recognition,
e) vide Section 19A empowers MCI to prescribe minimum standards of medical education,
f) vide Section 20A empowers the MCI to prescribe the professional conduct, etiquette and code of ethics to be followed by medical practitioners, and so on. The Schedules to the MCI Act are found to give detailed description of recognised medical qualifications.
33. Not only so, even if the concern sought to be addressed by the PNDT Act were to be held to include use of ultrasound machines only by those who are educationally equipped and trained therefor, it belies logic, why the prescription in the Act in this regard would be confined to use of ultrasound machines only for pre-natal diagnostic procedures when it is undisputed that the said machines are used for other diagnostic procedures as well. There is not mention whatsoever thereof in the Act or the Rules (though interestingly mention thereof is made in the Six Months Training Rules). It cannot be that though the MCI recognised medical qualifications educate and train for
use of ultrasound machine qua other diagnostic procedures but not qua prenatal.
Certainly the legislature cannot be presumed to be so arbitrary as to, while addressing the concern of not allowing use of ultrasound machines by those who are not qualified therefor, address it qua one of the diagnostic procedures only and not others. It further cannot be presumed that though MCI is competent to prescribe and regulate award of medical qualifications to enable a person to prescribe medicines and treatment to and even to conduct surgery on patients but not to do the same to enable a person to diagnose with the aid of ultrasound machine. In this regard it is also worth noting that under Section 10A of the MCI Act, the power of the Central Government to grant permission for establishment of medical colleges and for opening a new or higher course of study or training including a post graduate course of study or training, is “notwithstanding anything contained in this Act or any other law for the time being in force”.
34. We are therefore unable to comprehend the purport of the impugned
provisions prescribing the qualification of persons who can use and operate
the ultrasound machines and like. It is not as if prior to the coming into
force of the PNDT Act the ultrasound machines were in the hands of
persons other than „Doctors‟. Even in diagnostic centres where „technicians‟
were operating the ultrasound machines, they were under the control and
supervision of „Doctors‟ and it was the „Doctors‟ who were preparing and
signing the reports of ultrasound diagnosis/test. It was the „Doctors‟ only
who were misusing the same for sex determination, as is evident from
reports in the news media of the stray cases detected of violation of the Act.
35. Section 16 of the PNDT Act prescribing the functions of the Central
Supervisory Board constituted under Section 7 of the Act prescribes one of
the functions as, to create public awareness against the practice of
preconception sex selection and prenatal determination of sex of foetus
leading to female foeticide. We find the Supreme Court also to have, in
orders reported in (2001) 5 SCC 577, (2003) 8 SCC 398 and (2003) 8 SCC
410 in Centre For Enquiry into Health and Allied Themes (CEHAT) Vs.
UOI as well as in orders reported in (2013) 4 SCC 1, (2014) 16 SCC 426
and (2015) 9 SCC 740 in Voluntary Health Association of Punjab Vs.
UOI, repeatedly emphasised the need to sensitise the people and create
public awareness against the practise of prenatal determination of sex and
female foeticide.
36. Therefrom the legislative intent appears to be to allow use of
ultrasound machines only by those who can be sensitised to the issue.
Though to us it appears that the issue is a moralistic and not a legal one and
such sensitisation is not dependent upon literacy and there appears to be no
basis for presuming that the ultrasound machines prior to the coming into
force of PNDT Act were in the hands of persons who could not even be so
sensitised or for apprehension that they will be so in future, but we still fail
to see any nexus between the provisions of the PNDT Act and the aim and
objective of enactment thereof on the one hand and the impugned PNDT
Rule and the Six Months Training Rules with which we are concerned in
these petitions, on the other hand
37. We are of the opinion that for the purposes of prevention of sex
determination through ultrasound machines or other radiological techniques,
it matters not whether the ultrasound machine is in the hands of an MBBS
or an MBBS with six months training or an MBBS with one year experience
who has cleared the competency test or in the hands of MD radiologist /
obstetrics. The qualification of MBBS itself is a highly sought after
qualification, to secure which one has to first appear in a competitive
examination for admission to a medical college and thereafter has to
undergo the rigours of passing the MBBS examination. By no stretch of
imagination can it be said that an MBBS qualified person lacks education or
understanding to be not able to comprehend the fatal consequence of female
foeticide as a result of sex determination or the morality behind the same.
In our opinion, to understand the said aspects, the one year experience or
passing the competency test or undergoing the six months training or
acquiring the post-graduate qualification, add no further to the person. To
make an as educated a person as a "Doctor‟ understand the ill effects of sex
determination and that use thereof for the purposes of female foeticide is a
crime, there is no need to require him either to undergo post-graduation or a
six months training or gain a one year experience or pass a competency test.
By doing so, he will not be less likely to break the said law than he would
be without the same. It is not as if holding a medical qualification
recognised by MCI does not have any concern with the conduct/behaviour
of the holder thereof. The holder thereof is required to abide by the
standards of professional conduct and etiquette and code of ethics
prescribed by MCI in exercise of power under Section 20A of the MCI Act.
Moreover, when the holder of medical qualification is capable of being
sensitised with the code of conduct/etiquette/ethics, he/she can certainly be
sensitised to the issue of PNDT without being required to undergo any
training/experience.
38. We are constrained to observe that in the matter of the said
legislation, the destination appears to have been forgotten during the journey
from September, 1991 when the Pre-natal Diagnostic Techniques
(Regulation and Prevention of Misuse) Bill, 1991 was first introduced in the
Lok Sabha to the enactment of the PNDT Act and the Rules and the
amendments thereto.
39. The result thereof is evident. Inspite of the law having been enacted
nearly quarter of a century back, the child sex ratio continues to fall as
admitted by the Union of India in its counter affidavit filed in the year 2014
in WP(C) No. 3184/2014. A surfing of the internet does not show any
improvement thereafter either. The PNDT Act, clearly has failed to serve
the purpose.
40. One of the reasons therefor, as far as we can gauge is the unnecessary
emphasis on regulating and enforcing those provisions which do not serve
the aim and objective of the Act and at the expense of detection of
violations of the prohibitions imposed by the Act and which appear to
continue unabated. The entire enforcement machinery created under the Act
appears to be engrossed in the mammoth paper work of registration of
ultrasound machines and other diagnostic tools, even if in use of medical
professionals for non prenatal diagnosis and of ensuring that the records
required to be maintained by the registrants are maintained. In all this
exercise, there appears to be little time left for identifying those misusing
the ultrasound machine for sex determination and who are going undetected.
41. We now proceed to deal with the rival contentions, to answer the
following:
A. Interpretation of Section 2(p) of the PNDT Act, i.e. who is
authorised to operate and use a ultrasound machine.
B. Whether Rule 3(3)(1)(b) of the PNDT Rules (after the amendment
w.e.f.09.01.2014) is inconsistent with Section 2(p) of the PNDT
Act and if so to what effect.
C. Whether Rule 3(3)(1)(b) of the PNDT Rules (after the amendment
w.e.f. 09.01.2014), to the extent it requires a person possessing
one of the medical qualifications recognised by MCI Act to
undergo six months training as prescribed in the Six Months
Training Rules or if having experience of one year in
ultrasonography, to take the competency test, for operating and
using a ultrasound machine, is arbitrary and if so to what effect.
42. We may at the outset notice the difference in the stand qua the
interpretation of Section 2(p) between the petitioner in WP(C) No.
6968/2011 and the petitioners in the other two petitions. While according to
petitioner in WP(C) No. 6968/2011, which represents Doctors with
postgraduate degrees in radio-diagnosis, it is only the Doctors with
postgraduate degrees in radio-diagnosis who are competent to install, use,
operate and report on diagnosis with ultrasound machines and have been
doing so in the past and the PNDT Act has for the first time entitled even
W.P.(C) Nos.6968/2011, 2721/2014 & 3184/2014 Page 43 of 83
those without postgraduate degrees i.e. mere MBBS to do so, the petitioners
in other two petitions who represent the general body of Doctors, not
necessarily holding postgraduate degree in radio-diagnosis, controvert.
However since we have not been shown and have ourselves not been able to
find any bar under the MCI Act or any other law/rule/regulation, to
using/operating ultrasound machine save with a postgraduate degree in radio
diagnosis, we proceed to interpret Section 2(p) literally.
43. Section 2(p) was subject matter of interpretation in K.L. Sehgal supra
on which heavy reliance has been placed by the respondent Union of India
in its counter affidavits as hereinabove recorded. It was the contention of
the GNCTD in that case that the word “or” between the words “...Indian
Medical Council Act, 1956 (102 of 1956)” and “who possess a postgraduate
qualification...” in Section 2(p) of the PNDT Act has to be read as
“and”. This Court however rejected the said contention reasoning (a) that a
plain reading of Section 2(p) shows that a person possessing one of the
medical qualifications recognised under the MCI Act is a sonologist and the
word “or” only makes possessing of the post-graduate qualification in ultrasonography
or imaging techniques or radiology an alternative qualification;
(b) that though prior to the insertion of Section 2(p) certain amendments
W.P.(C) Nos.6968/2011, 2721/2014 & 3184/2014 Page 44 of 83
were proposed and in which instead of the word “or” the words “and / or”
existed but in the ultimate enactment the word “and” was dropped meaning
that the definition as was incorporated requires a post-graduate qualification
only in the alternative; (c) that the understanding of the definition in Section
2(p) is also reflected in Regulation 3(3)(1)(b) (as it stood then i.e. prior to
amendment w.e.f. 09.01.2014) which enabled a sonologist or a imaging
specialist or a radiologist or registered medical practitioner having postgraduate
decree or diploma or six months training or one year experience in
sonography or image screening to set up a genetic clinic / ultrasound clinic /
imaging centre; (d) that if the word “or” is read as “and”, then the words
which indicate that the person should be possessing one of the medical
qualifications recognised under the MCI Act would be rendered redundant;
(e) that to accept the argument that the word “or” should be read as “and”
would be reading too many words into Section 2(p) of the PNDT Act, which
is not simply permissible; (f) that MCI also in its letter dated 4th May, 2009
to one of the petitioners had intimated that a person who either has a MBBS
degree or a further specialisation qualification would be able to run an
ultrasound clinic provided he or she undergoes six months training in ultrasonography.
W.P.(C) Nos.6968/2011, 2721/2014 & 3184/2014 Page 45 of 83
44. Union of India and GNCTD were parties to K.L. Sehgal and accepted
the said judgment and allowed it to attain finality. They have now also not
assailed the interpretation of Section 2(p) of PNDT Act therein. Rather,
both in their respective counter affidavits have relied heavily thereon. The
contention of the petitioners in WP(C)No. 2721/2014 and WP(C) No.
3184/2014 also is that qualification of MBBS or any medical qualification
recognized under the MCI Act is enough to operate/use an ultrasound
machine. It is only the petitioner in WP(C) No. 6968/2011 which contends
that only those with postgraduate degree in radio-diagnosis can do so;
however it has been unable to show any requirement of MCI in this regard.
We have already hereinabove held that the aim and objective of the PNDT
Act was not to prescribe the qualification of persons eligible / qualified to
do medical diagnosis with the aid of ultrasound machine but to only prevent
misuse thereof for sex determination resulting in female foeticide. We have
not been told or are able to comprehend as to how, to serve the said purpose
it is relevant whether the ultrasound machine is in hands of a person having
qualification of MBBS or of a person holding qualification of M.D. (RadioDiagnosis).
If MCI, which is the specialist body in the field of medicine, is
of the opinion that persons having MBBS qualification are entitled to
W.P.(C) Nos.6968/2011, 2721/2014 & 3184/2014 Page 46 of 83
practise medicine with use of ultrasound machine, we need look no further.
In this light of the matter we do not feel the need to consider the correctness
of the interpretation of Section 2(p) in K.L. Sehgal supra. We also do not
find the amendment of Rule 3(3)(1)(b) w.e.f. 09.01.2014 i.e. after K.L.
Sehgal, to have any effect thereon. Suffice it is to state that literally,
Section 2(p) enables a person who possesses any one of the medical
qualification recognised by MCI to be a sonologist or imaging specialist.
45. We will next take up the question, whether the Rule 3(3)(1)(b) of the
PNDT Rules as amended w.e.f. 09.01.2014 is contrary to the PNDT Act.
46. Rule 3(3)(1)(b) prescribes the qualifications of those who can set up
or those who can be employed in a genetic clinic, ultrasound clinic or a
imaging centre. The word employee is defined in Rule 2(b) as a person
working in or employed by a genetic clinic or an ultrasound clinic or an
imaging centre including those working on part-time, contractual,
consultancy, honorary or on any other basis.
47. The Act defines genetic clinic and genetic laboratory in Section 2(d)
and (e) thereof as under:
(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;
W.P.(C) Nos.6968/2011, 2721/2014 & 3184/2014 Page 47 of 83
Explanation- For the purposes of this clause, „Genetic
Clinic‟ includes a vehicle, where ultrasound machine or
imaging machine or scanner or other equipment capable
of determining sex of the foetus or a portable equipment
which has the potential for detection of sex during
pregnancy or selection of sex before conception, is used.
(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;
The terms „ultrasound clinic‟ and „imaging centre‟ used in Rule
3(3)(1)(b) are not defined in the Act or the Rules.
48. „Pre-natal diagnostic procedures‟ [used in Section 2(d)], „prenatal
diagnostic techniques‟ and „prenatal diagnostic test‟ are defined in Section
2(i) (j) and (k) of the PNDT Act as under:
(i) pre-natal diagnostic procedures means all gynecological or
obstetrical or medical procedures such as ultrasonography
foetoscopy, taking or removing samples of amniotic fluid,
chorionic villi, embryo, blood or any other tissue or fluid of a
man, or of woman before or after conception, for being sent to a
Genetic Laboratory or Genetic Clinic for conducting any type
of analysis or pre-natal diagnostic tests for selection of sex
before or after conception;
(j) pre-natal diagnostic techniques includes all pre-natal
diagnostic procedures and pre-natal diagnostic tests;
(k) pre-natal diagnostic test means ultrasonography or any test
or analysis of amniotic fluid, chorionic villi, blood or any tissue
W.P.(C) Nos.6968/2011, 2721/2014 & 3184/2014 Page 48 of 83
of a pregnant woman or conceptus conducted to detect genetic
or metabolic disorders or chromosomal abnormalities or
congenital anomalies or haemoglobinopathies or sex-linked
diseases;
49. Though the words ultrasound clinic/imaging centre are not defined as
aforesaid but it follows from a conjoint reading of definitions aforesaid that
any clinic/institute/hospital/nursing home or other place, though not
proclaiming itself to be carrying out pre-natal diagnostic procedure and thus
not a genetic clinic but having ultrasound or other machines „capable of‟
viewing/imaging the foetus and other organs of human body for selection of
sex before or after conception, would be covered thereby.
50. We may in this regard highlight that the definition of genetic clinic in
Section 2(d) of the Act, as per the Explanation thereto includes a place
where ultrasound or imaging machine „capable of‟ determining sex of the
foetus or having potential for detection of sex during pregnancy or selection
of sex before conception is used. The explanation being „inclusive‟, cannot
be confined to vehicle. This becomes further evident from Section 18(1),
which also uses the word „capable of‟ and is as under:
18. Registration of Genetic Counselling Centres, Genetic
Laboratories or Genetic Clinics:
(1) No person shall open any Genetic Counselling Centre,
Genetic Laboratory or Genetic Clinic, including clinic,
W.P.(C) Nos.6968/2011, 2721/2014 & 3184/2014 Page 49 of 83
laboratory or centre having ultrasound or imaging machine
or scanner or any other technology capable of undertaking
determination of sex of foetus and sex selection, or render
services to any of them, after the commencement of the Prenatal
Diagnostic Techniques (Regulation and Prevention of
Misuse) Amendment Act, 2002 unless such centre,
laboratory or clinic is duly registered under the Act.
51. The Act thus takes within its sweep all places/vehicles where
ultrasound machine or other machine are kept, whether for prenatal
diagnostic procedures or not, if they are capable of sex determination. We
will deal further with this aspect in the discussion under question „C‟ framed
by us in para 41 above.
52. That brings us back to, whether Rule 3(3)(1)(b) is inconsistent with
Section 2(p) for the reason of expanding the definition of sonologist as
given in Section 2(p) of the Act.
53. Rule 3(3)(1)(b) prescribes the qualifications for setting up of or for
employment in a genetic clinic /ultrasound clinic/imaging centre.
54. Though the PNDT Act in Section 2(p) defines the words sonologist or
imaging specialist but there is thus nothing in the Act to indicate what a
sonologist or imaging specialist as defined in the PNDT Act can do or what
he/she is prohibited from doing. There is absolutely nothing in the Act
entitling a sonologist or imaging specialist, as defined therein, to use/operate
W.P.(C) Nos.6968/2011, 2721/2014 & 3184/2014 Page 50 of 83
a ultrasound machine or imaging machine or to set up a genetic clinic /
ultrasound clinic/imaging clinic. In fact the word sonologist, besides in
Section 2(p), is used only at two other places in the Act i.e. in Section
16A(2)(f)(v) while prescribing the categories of persons from whom
members of the State Advisory Board are to be appointed and in Section
23(3) while prescribing the punishment for a person who approaches any
Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic or
Ultrasound Clinic or Imaging Clinic or a medical geneticist, gynaecologist,
sonologist or imaging specialist or registered medical practitioner or any
other person for sex selection. The word imaging specialist is used only in
Section 23(3). The said provisions do not vest any right in sonologist or
imaging specialist as defined in Section 2(p) to set up or seek employment
in a place having ultrasound or like machine. On the contrary the Act, by
Section 32(2)(i) empowers the Central Government to make rules providing
for the minimum qualification for persons employed in genetic clinic and
which as aforesaid would include ultrasound clinic and imaging clinic and
in exercise of which power Rule 3(3)(1)(b) has been enacted.
55. The question thus, of Rule 3(3)(1)(b) being inconsistent with Section
2 (p) does not arise.
W.P.(C) Nos.6968/2011, 2721/2014 & 3184/2014 Page 51 of 83
56. We may at this stage deal with the contention of senior counsel for
the petitioner in WP(C)No.2721/2014 of the words “registered medical
practitioner” in Rule 3(3)(1)(b) referring to registered medical practitioner
as defined in Rule 2 (ee) of the Drugs and Cosmetics Rules, 1945. We do
not find any merit therein because „registered medical practitioner‟ is
defined in Section 2(m) of the Act as under:
(m) registered medical practitioner means a medical
practitioner who possesses any recognised medical
qualification as defined in clause (h) of section 2 of the Indian
Medical Council Act, 1956, (102 of 1956), and whose name has
been entered in a State Medical Register;
and Rule 2(f) is as under:
2.(f) words and expressions used herein and not defined in these
rules but defined in the Act, shall have the meanings,
respectively, assigned to them in the Act.
57. That brings us to question „C‟ framed by us in para 41 above. There
are two limbs of it i.e. whether the insistence in Rule 3(3)(1)(b) read with
Rule 6(2) of the Six Months Training Rules on six months training or one
year experience coupled with passing the competency test is arbitrary, and if
not, whether the insistence thereon even for those intending to or using the
ultrasound machines or imaging machines for purposes other than pre-natal
diagnostic procedures is arbitrary.
W.P.(C) Nos.6968/2011, 2721/2014 & 3184/2014 Page 52 of 83
58. Rule 3(3)(1)(b) refers to a Sonologist or Imaging Specialist and which
words, in terms of Rule 2(f) supra would take their colour from their
definition of Sonologist or Imaging Specialist in Section 2(p) of the Act. In
this context the challenge in W.P.(C) No.6968/2011 to Section 2(p)
becomes relevant. It remains unrebutted that in the Schedule to the MCI
Act there is no “post-graduate qualification, in ultrasonography or imaging
techniques” referred to in Section 2(p). The reference certainly cannot be to
any such qualification which is not recognised by MCI. Section 2(p) thus
indeed is faulty to the said extent and none can claim under Rule 3(3)(1)(b)
on the basis of having a postgraduate qualification in ultrasonography or
imaging techniques, till such qualification is included in the schedule to the
MCI Act.
59. Rule 3(3)(1)(b), even prior to amendment with effect from 9th
January, 2014, referred to six months training or one year experience in
sonography or image screening. There admittedly was no prescribed six
months training or prescription for one year experience. It however appears
that registrations under the PNDT Act were being granted on the basis of
training / experience with any other person registered under the Act and
certificate issued by that person and there was a lot of arbitrariness as was
W.P.(C) Nos.6968/2011, 2721/2014 & 3184/2014 Page 53 of 83
noticed in K.L. Sehgal supra. However since in the absence of any
prescription, the reference to six months training or one year experience
was not an impediment to anyone obtaining registration, the occasion for
challenging the same did not arise. It was rather the grievance of the
petitioner in W.P.(C) No.6968/2011 that taking advantage of the faulty
definition of Sonologist or Imaging Specialist as aforesaid in Section 2(p)
and the absence of any prescription / rules regarding six months training and
one year experience, those not competent to set up a ultrasound clinics, had
obtained registrations under the Act, defeating rather than serving the
purpose of the Act.
60. However upon the framing of Six Months Training Rules and the
amendment of Rule 3(3)(1)(b) with effect from 9th January, 2014, the cause
of action as per contentions aforesaid has accrued.
61. The respondent UOI has attributed the said amendments solely to
K.L. Sehgal.
62. Since the respondents in their counter affidavits have extensively
referred to K.L. Sehgal, notice at this stage may be taken thereof. The
learned Single Judge was therein concerned with rejection of the application
of doctors of two well-known established radiology / ultrasound clinics of
W.P.(C) Nos.6968/2011, 2721/2014 & 3184/2014 Page 54 of 83
Delhi for grant / renewal of their registration under the PNDT Act. This
Court in the judgment took notice of the stand of the MCI (i) that the
recognised medical qualification as defined under Section 2(h) of the MCI
Act means any of those medical qualification included in the Schedule to
the MCI Act; (ii) that the MCI had framed the Post-Graduate Medical
Education Regulations, 2000; (iii) that as per Rule 10 of the said
Regulations, the period of training for the award of degree of Directorate of
Medicine (MD) / Master of Surgery (MS) consists of three completed years
including the period of examination; (iv) that for award of a post-graduate
diploma, there is to be two completed years training, including the period of
examination; (v) that the specialities in which post-graduate degrees /
diplomas can be awarded are prescribed in the Schedule to the Regulations;
(vi) that the said Schedule includes qualification of MD with speciality in
radio-diagnosis; (vii) that the Schedule also includes diplomas in radiodiagnosis,
radiotherapy and radiological sciences; (viii) that the institutes
from where the petitioners in that case claimed to have undergone training
were not included in the Schedule or in the list of institutes recognised /
permitted by MCI to conduct any post-graduate courses in radio-diagnosis
or ultrasound; and, (ix) that the petitioners thus could not claim to be having
W.P.(C) Nos.6968/2011, 2721/2014 & 3184/2014 Page 55 of 83
six months training or one year experience.
63. It was also noticed in K.L. Sehgal that MCI did not appear to be
itself aware of medical colleges which provide training in ultra-sonography
and diagnostic ultrasound and that there was uncertainity in applying the
PNDT Act and the Rules and that none of the authorities were clear, what
should be minimum criteria regarding training, where the training should be
provided, whether the criteria should be made prospective and so on. It was
however observed that these were technical aspects on which the views of
the experts rather than of the Court are relevant and that the Court in
exercise of jurisdiction under Article 226 of the Constitution lacks the
competence to determine such technical issues. This Court lamented on the
disconcerting state of affairs resulting in mushrooming growth of diagnostic
clinics and ineffective regulation thereof. It was directed that to avoid any
confusion, the requirements in terms of qualification, training and
experience to be recognised and registered as a sonologist should be
incorporated in the PNDT Act and further explicated under the PNDT
Rules.
64. It would thus be evident that this Court in K.L. Sehgal did not return
any findings on which the respondent no.1 could have based its amendment
W.P.(C) Nos.6968/2011, 2721/2014 & 3184/2014 Page 56 of 83
with effect from 9th January, 2014. The justification of the amendment
thereon is thus misconceived.
65. Else, the challenge thereto in these petitions has not been met. No
source of power from any of the provisions of the PNDT Act has been
shown, to in exercise of power under Section 32, lay down and prescribe the
course and training and content thereof to practise medicine with aid of
ultrasound machine and to prohibit those, who by virtue of their name
entered in the Medical Register under Section 15 of the MCI Act entitled to
so practise, from so practising without undergoing the said six months
course or experience coupled with passing the competency test.
66. Sections 3, 3B and 4 of the PNDT Act are as under:
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 prenatal
diagnostic techniques;
(2) no Genetic Counselling Centre or Genetic Laboratory or
Genetic Clinic shall employ or cause to be employed or take
services of any person, whether on honorary basis or on
payment who does not possess qualifications as may be
prescribed;
(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
W.P.(C) Nos.6968/2011, 2721/2014 & 3184/2014 Page 57 of 83
techniques at a place other than a place registered under this
Act;
.......
3B. Prohibition on sale of ultrasound machines, etc., to
persons, laboratories, clinics, etc. not registered under the
Act.- No person shall sell any ultrasound machine or imaging
machine or scanner or any other equipment capable of
detecting sex of foetus to any Genetic Counselling Centre,
Genetic Laboratory, Genetic Clinic or any other person not
registered under the Act.
4. Regulation of pre-natal diagnostic techniques.- On and
from the commencement of this Act,--
(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;
67. The aforesaid provisions of the Act read with Section 18(1) thereof
reproduced earlier prohibit doing of activities mentioned therein without
registration under the PNDT Act and the PNDT Rules inter alia lay down
the conditions for such registration. Registration under the Act and the
Rules is thus a licence to carry on the activities which are prohibited by the
W.P.(C) Nos.6968/2011, 2721/2014 & 3184/2014 Page 58 of 83
Act.
68. The said activities which are prohibited by the Act save with licence
in accordance with Rules, we have no doubt are activities of practise of
„medicine‟ defined in Section 2(f) of the MCI Act as under:
“2(f). "medicine" means modern scientific medicine in
all its branches and includes surgery and obstetrics,
but does not include veterinary medicine and surgery”
and the licence granted is a “medical qualification” which confers on the
grantee / recipient, the right to practise the said field of medicine and in
which he / she cannot practise without such registration / licence.
69. The MCI Act, vide Section 10A(1)(b)(i) thereof prohibits a medical
college from opening a new or higher course of study or „training‟ which
would enable a student of such course or training to qualify himself for the
award of any recognized medical qualification and which is defined in
Section (h) thereof as a qualification included in the Schedules to the said
Act. It is not the case that the six months training under the Six Months
Training Rules framed therefor under the PNDT Act has been included in
the Schedules to the MCI Act. It is thus not a recognized qualification.
W.P.(C) Nos.6968/2011, 2721/2014 & 3184/2014 Page 59 of 83
70. The Indian Medical Degrees Act, 1916 vide Section 2 thereof
describes „western medical science‟ as western method of allopathic
medicine, obstetrics and surgery but not including Homeopathy or
Ayurvedic or Unani System of medicine. Section 3 of the said Act provides
that the right to confer degrees, diplomas, licences, certificates or other
documents stating or implying that the holder, grantee or recipient thereof is
qualified to practise western medical science is only of the authorities
specified in Schedule thereto. Section 4 thereof prohibits unauthorized
conferment of degrees, diplomas, licences, certificates or other document
stating or implying that holder thereof is qualified to practise western
medical science.
71. In our opinion, the activities prohibited by the PNDT Act save with
licence / registration under the said Act and Rules framed thereunder, are
activities of practise of western medical science within the meaning of the
Indian Medical Degrees Act and the Appropriate Authority constituted
under the PNDT Act which has been empowered to grant registration /
licence thereunder having not been included in the Schedule to the Indian
Medical Degrees Act, the registration / licence granted by the Appropriate
Authority under the PNDT Act cannot thus confer a right to practise what is
W.P.(C) Nos.6968/2011, 2721/2014 & 3184/2014 Page 60 of 83
prohibited by PNDT Act. On the contrary, as aforesaid a person holding a
qualification recognized under the MCI Act was / is entitled to practise what
has been taken away / prohibited by the PNDT Act. We agree with the
petitioners that the MCI is the sole repository of education in western
medical science which includes training and the training if any required for
conducting prenatal diagnostic procedures has to be by inclusion in the
Schedules to the MCI Act. The Supreme Court in MCI Vs. State of
Karnataka (1998) 6 SCC 131 reiterated in Dr. Preeti Srivastava Vs. The
State of Maharashtra (1999) 7 SCC 120 held that fixation of admission
capacity in medical colleges/institutions is the exclusive function of MCI
and the same has a direct nexus with co-ordination and determination of
standards in medical education. Though undoubtedly the permission under
the MCI Act, for establishment of a medical college is not applicable to
Central Government (see Explanation 1 to Section 10A) and permission for
starling a new course of study or training is to be granted by the Central
Government but the MCI having been constituted under the MCI Act as the
expert body to make recommendations to the Central Government, we are
of the view that the need even if felt for six months training as under the
PNDT Act, should be fulfilled within the confines of the MCI Act. We do
W.P.(C) Nos.6968/2011, 2721/2014 & 3184/2014 Page 61 of 83
not find any representation of the MCI in the Supervisory Boards or in the
Appropriate Authorities or Advisory Committees constituted under the
PNDT Act to advise the Central Government on policy matters thereunder
and implementation thereof. Though the respondent UOI claims to have
constituted MCI before the amendment of 9th January, 2014 but the said
consultation cannot be a substitute for the procedure required to be followed
under the MCI Act.
72. The purport of our above discussion is to again highlight that the
essential provisions of the PNDT Act i.e. those directly concerned to serve
the aim and objective thereof, appear to have been diluted and / or lost their
effectiveness in the midst of provisions which do not appear to have any
nexus to the aim and objective of the Act, leading to the child sex ratio
continuing to fall except in some metropolitan cities.
73. There is no denying the fact that ultrasound machines today are used
for diagnosis of ailments of a large number of organs in the human body and
the use thereof is not limited to pre-natal diagnostic procedures.
74. Though the PNDT Act is concerned with use of ultrasound machines
only in pre-natal diagnostic procedures and not with use thereof for other
diagnostic procedures and there is merit in the grievance of the petitioners,
W.P.(C) Nos.6968/2011, 2721/2014 & 3184/2014 Page 62 of 83
of the Doctors using the ultrasound machines for other diagnostic
procedures having also been brought in the purview of the Act and being
required to comply with cumbersome requirements thereof, to their
detriment and cost, but at the same time the reason for the net of the Act
having been spread far and wide to encompass all ultrasound machines,
because an ultrasound machine even though not intended for prenatal
diagnostic procedures being „capable of‟ use therefor, cannot be said to be
baseless. We are therefore unable to confine the operation of the PNDT Act
only to those proclaiming to run a genetic clinic and hold that all those
places including vehicles where ultrasound or like machine „capable of‟ sex
determination is kept would be a genetic clinic and within the ambit of the
Act.
75. It was to balance the said conflicting interests that we had enquired of
the technical solution if any, to prevent use of ultrasound machines not
intended for prenatal diagnostic procedures, therefor and suggested, though
registering all users of ultrasound machines but exempting those furnishing
declaration not to use the same for prenatal diagnostic procedures from
complying with other requirements of the Act but remaining liable for
inspection and penalties etc. if found to be violating.
W.P.(C) Nos.6968/2011, 2721/2014 & 3184/2014 Page 63 of 83
76. Though we were told that neither was / is possible but we find that a
Division Bench of the High Court of Bombay in Radiological and Imaging
Association (State Chapter-Jalna) Vs. Union of India
MANU/MH/1050/2011 was concerned with a challenge to a circular dated
10th March, 2010 of the District Magistrate Kolhapur whereby all Doctors,
Sonologists and Radiologists were called upon to install device “silent
observer” in their ultrasound machines, on the ground that the same invaded
privacy of the patients and was also contrary to the provisions of the PNDT
Act and the Rules which merely required the doctors to maintain records. It
was the defence of the District Magistrate, Kolhapur that the requirement
for maintaining records and the provision for inspection thereof by the
authorities was failing to check the child sex ratio which was continuing to
fall and the “silent observer” if installed in the ultrasound machines will
capture and store the video record of each sonography test enabling the
authorities to effectively check violations. The Central Government also
supported the said stand. The High Court found that the images stored in
the “silent observer” remain part of the ultrasound machine on which “silent
observer” is embedded and enables the authorities under the Act to detect
violation of the PNDT Act by removing the “silent observer” from the
W.P.(C) Nos.6968/2011, 2721/2014 & 3184/2014 Page 64 of 83
ultrasound machine and accessing the sonographies done with the
ultrasound machine on a computer. The challenge on the ground of breach
of privacy was negatived reasoning that the doctors were in any case
required to maintain the record and the petition was dismissed. We also
find that during the hearing of another petition before the Bombay High
Court impugning the ban on use of portable ultrasound machines and as
reported in the judgment therein i.e. Radiological and Imaging Association
(State Chapter) Vs. Union of India MANU/MH/1436/2011, the Advocate
General for the State of Maharashtra stated that the order as issued by the
District Magistrate, Kolhapur was applicable to the entire State of
Maharashtra and the advocate appearing for the Ministry of Health, Union
of India also stated that the said direction for installation of “silent observer”
is in accordance with law and directions to the said effect shall be issued
with respect to the rest of the country as well. We yet further find another
Division Bench of the Bombay High Court in Writ Petition Lodging
No.2059/2012 titled Dr. Rajendra G. Goyal Vs. State of Maharashtra to
have vide order dated 17th September, 2012 stayed the ban on use of
portable ultrasound machines subject to installation of “silent observer”
therein.
W.P.(C) Nos.6968/2011, 2721/2014 & 3184/2014 Page 65 of 83
77. We are at a loss why neither party informed us of the same and rather
inspite of our specific enquiry ruled out such a solution. In our opinion the
installation of silent observer on ultrasound machines offers perfect
balancing of the need to prevent misuse of ultrasound machines for sex
determination and the need to not burden the doctors desirous of using
ultrasound machines for procedures other than pre-natal with unnecessary
paper work and displaying warnings in their clinics as required to be
displayed by genetic clinics.
78. We further find that a Division Bench of the High Court of Kerala in
Qualified Private Medical Practitioners and Hospitals Association Vs.
State of Kerala MANU/KE/0330/2006 was concerned with petitions for a
declaration that the laboratories and clinics which do not conduct pre-natal
diagnostic tests using ultrasonography will not come within the purview of
the PNDT Act and for a direction not to insist for registration of all
ultrasound scanning centres irrespective of the fact whether they are
conducting pre-natal diagnostic tests using ultrasonography or not. It was
contended before the Court that only institutions which use ultrasonography
for the purpose of pre-natal diagnostic tests will come within the purview of
the Act and only such institutions are required to register with the
Authorities under the Act and the direction to all ultrasound clinics in the
city to resister was bad. The respondents of course relied upon the order of
the Supreme Court in CEHAT to contend that all clinics with ultrasound
machines require registration irrespective of the fact whether the machines
were used for any pre-natal detection or not. The High Court held that
though Section 18 of the Act compels registration of Genetic Counselling
Centres, Genetic Laboratories or Genetic Clinics without which no person
can open any such centre, laboratory or clinic but the expression "Genetic
Counselling Centre" as defined under Section 2(c) makes it clear that only
those institutes, hospitals or nursing homes which provide for genetic
counselling to patients come within the ambit of the expression "Genetic
Counselling Centre". Further, on a reading of the definition in Section 2(d)
of a genetic clinic it was held that only those clinics, institutes, hospitals or
nursing homes which conduct pre-natal diagnosis would be covered. It was
thus held that those hospitals, nursing homes or clinics not conducting any
pre-natal diagnostic procedures though having a ultrasound machine would
not be Genetic Counselling Centres or genetic clinics within the meaning of
the Act. It was further held on a interpretation of Section 4(1) that the
legislature however has extended the prohibition contained therein even to
W.P.(C) Nos.6968/2011, 2721/2014 & 3184/2014 Page 67 of 83
unregistered counselling centres or diagnostic centres or genetic clinics i.e.
even institutions which may not require registration will still be governed by
the restrictive provisions and cannot indulge in any activities contrary to the
legislative mandate imposed under Section 4 and the prohibitions contained
therein equally apply to all such institutions. It was further held that with a
view to prevent misuse of any pre-natal diagnostic techniques except for the
purpose of genetic or metabolic diseases etc., the authorities would be free
to conduct inquiries or to hold inspections at places where such device is
available and to take action in case any person or institution is found to have
indulged in activities contrary to the provisions of the Act. We do not find
the matter to have been taken to the Supreme Court.
79. We also find the High Court of Punjab and Haryana in Medscan
Diagnostic Imaging Centre Vs. State Appropriate Authority
MANU/PH/3702/2014, though concerned with a challenge to an order of
seizure of MRI and CT scan gadgets under the PNDT Act to have observed
that mere possession of a machine or a gadget capable of detection of sex
cannot be an offence under the Act. It was held that this would set new
restrictions which will be disastrous for an ordinary clinic which is not
registered as a genetic clinic but has an MRI or CT scan for the purposes of
W.P.(C) Nos.6968/2011, 2721/2014 & 3184/2014 Page 68 of 83
determination of other abnormalities that may have no reference at all to
performance of sex determination. It was held that possession of equipment
ought not to be taken as possession of equipment which could be used for
sex determination. The Court took notice of the poor detection of violations
of the Act but observed that the same cannot be a ground for punishing mere
possession of the machine without any charge of having conducted sex
determination with the aid thereof. LPA No.696/2015 preferred thereagainst
was dismissed vide judgment dated 7th May, 2015. We again do not find the
matter to have been taken to the Supreme Court.
80. From the above, it appears that there is no uniformity in the
implementation of the Act and the Rules across the country and no attempt
even towards the same has been made.
81. We have hereinabove on an analysis of the provisions of the PNDT
Act held that the same is not concerned with formulating education or
qualifications for practising medicine with the aid of ultrasound machine.
The power of the Central Government under Section 32 to make rule
providing for minimum qualifications of persons employed at genetic clinic
has to be interpreted in the said light. The rule making power under a
statute cannot travel beyond the Act. There is no provision in the Act
W.P.(C) Nos.6968/2011, 2721/2014 & 3184/2014 Page 69 of 83
providing for imparting of education including training or formulating
curriculum thereof or to hold competency test, as a pre-requisite to
registration under the Act entitling a person to practise medicine with the
aid of ultrasound machine.
82. In the absence of any such provision in the Act, no such power can be
conferred by the Central Government on itself in the guise of making rules.
Supreme Court in Academy of Nutrition Improvement supra cited by the
senior counsel for the petitioner reiterated that conferment of rule making
power by an Act does not enable the rule making authority to make a rule
which travels beyond the scope of enabling Act.
83. A Division Bench of this Court, in Indraprastha Gas Ltd. Vs.
Petroleum & Natural Gas Regulatory Board (PNGRB)
MANU/DE/2313/2012, for the detailed reasons given therein and need to
repeat which herein is not felt, held that the Petroleum & Natural Gas
Regulatory Board Act, 2006 does not confer any power on the PNGRB to
fix /regulate price of gas as had been done vide the order of the PNGRB
impugned in that proceeding and accordingly held the regulations framed by
the PNGRB empowering it to fix the price to be beyond the competence of
PNGRB and ultra vires the PNGRB Act. Reliance in the judgment was
W.P.(C) Nos.6968/2011, 2721/2014 & 3184/2014 Page 70 of 83
placed on (i) various dicta of the courts that price fixation is a legislative
function, to be performed by a statutory authority in furtherance of the
provisions of the relevant laws; (ii) U.P. Power Corporation Limited Vs.
National Thermal Power Corporation Ltd. (2009) 6 SCC 235 holding that
regulatory provisions are required to be applied having regard to the nature,
textual content and situational context of each statute; and, (iii) DLF Qutab
Enclave Complex Educational Charitable Trust Vs. State of Haryana
(2003) 5 SCC 622 holding that a Regulatory Act must be construed having
regard to the purpose it seeks to achieve and a statutory authority cannot ask
for something which is not contemplated under the statute.
84. The appeal against the aforesaid judgment of this Court, was
dismissed by the Supreme Court vide judgment reported as Petroleum &
Natural Gas Regulatory Board Vs. Indraprastha Gas Ltd. (2015) 9 SCC
209. Supreme Court also proceeded to examine whether a reading of
provisions of the Act showed a conferment of power to fix price and not
finding so, upheld the judgment of this Court. The contention, that PNGRB
having been established under a statute, to regulate, a power to regulate
price should be inferred, was negatived.
W.P.(C) Nos.6968/2011, 2721/2014 & 3184/2014 Page 71 of 83
85. We are humbly of the view that just like price fixation is a legislative
function, similarly, education, particularly higher education as in the field of
medicine is a legislative function to be performed by a statutory authority in
furtherance of the provisions of the relevant law, just like the MCI
constituted under the MCI Act, All India Council of Technical Education
(AICTE) constituted under the All India Council for Technical Education
Act, 1987, universities constituted under the University Grants Commission
Act, 1956 etc. are performing. In the PNDT Act with which we are
concerned, though Statutory Authorities viz. Supervisory Boards,
Appropriate Authorities and Advisory Committees have been constituted
but not empowered to regulate education in the field of medicine with the
aid of ultrasound machine. The Central Government, in our view, in
exercise of its rule making power under the said Act cannot do so. Supreme
Court, in Professor Yashpal Vs. State of Chhatisgarh (2005) 5 SCC 420
held that it is the responsibility of Parliament to ensure that proper standards
are maintained in institutions for higher education.
86. In the field of medicine, we find that the Supreme Court in Hamdard
Dawakhana Vs. Union of India AIR 1960 SC 554 concerned with the
challenge to Section 3(d) of the Drug and Magic Remedies (Objectionable
W.P.(C) Nos.6968/2011, 2721/2014 & 3184/2014 Page 72 of 83
Advertisements) Act, 1954 prohibiting taking any part in the publication of
any advertisement referring to any drug in terms which suggests the
“diagnosis, cure, mitigation, treatment or prevention of any general disease
or any other diseases or condition which may be specified in the Rules made
under the Act” held that the delegation to the Administrative Authority
without the Parliament establishing any criteria, standards or principles on
which a particular disease is to be specified thereunder was beyond the
permissible boundaries of valid delegation. It was held that the words, “or
any other disease or condition which may be specified under the Rules made
under the Act”, confer uncanalised, uncontrolled power to the executive and
is ultra vires.
87. We also find that the Supreme Court in Godde Venkateswara Rao
Vs. Government of Andhra Pradesh AIR 1966 SC 828 was concerned with
a challenge to an order of the Government of Andhra Pradesh under Section
72 of the Andhra Pradesh Panchayat Samithis and Zilla Parishads Act, 1959
on the ground of being inconsistent with the provisions of the Act. It was
held that the government in exercise of the rule making power under the Act
can only makes Rules for carrying out the purpose of the Act and cannot
under the guise of the said Rules convert an authority with power to
establish a Primary Health Centre into only a recommendatory body and
cannot vest in itself a power which under the Act vests in another body.
The Rules to the extent they transferred the power of the Panchayat Samithi
to the Government, being inconsistent with the provisions of the Act, were
held, must yield to the Act.
88. The matter, in our view is placed beyond any pale of controversy by
the two decisions of the Supreme Court relating to the profession of law.
Supreme Court in Indian Council of Legal Aid and Advice Vs. Bar
Council of India (1995) 1 SCC 732 was concerned with the challenge to the
Rule introduced by the Bar Council of India prohibiting enrolment as an
Advocate of those who had completed the age of 45 years. The Bar Council
of India justified the said Rule as the sentinel of professional conduct and
the same being necessary for maintaining standards and traced its power to
make such a Rule to laying down the conditions subject to which an
Advocate shall have right to practise and the circumstances under which a
person shall be deemed to practice as an Advocate. It was however held
that the power thereunder was to lay down the conditions applicable to an
Advocate i.e. a person who has already been enrolled as an Advocate and
did not entitle the Bar Council of India to bar the entry into the legal
W.P.(C) Nos.6968/2011, 2721/2014 & 3184/2014 Page 74 of 83
profession of persons who had completed 45 years of age. It was further
held that the Parliament while enacting the Advocates Act, 1961 had
provided the basic substantive matters, viz. eligibility for entry into the
profession, disqualification for enrolment and had nowhere restricted the
entry of those who had completed the age of 45 years as Advocates and the
Bar Council of India in the guise of making a Rule could not introduce an
additional condition for entry into the profession. Accordingly, the Rule
was held to be beyond the rule making power and ultra vires the Act.
89. In another case namely V. Sudeer Vs. Bar Council of India (1999) 3
SCC 176, the Supreme Court was concerned with the Bar Council of India
Training Rules, 1995 as amended by the Resolution of the Bar Council of
India in the meeting held on 19th July, 1998, relating to training of entrants
of the legal profession. It was the contention of the petitioners that after
having successfully completed their legal education by getting requisite law
degrees from the Universities, their right to practise law as available to them
under the Advocates Act could not be taken away by requiring them to
undergo training. It was also the contention that the Rules were totally
unworkable, highly unreasonable and discriminatory and violative of Article
14 of the Constitution of India. Finding that under the Advocates Act, not
having undergone pre-enrolment training was not a disqualification for
enrolment and further not finding any legislative intention in the Advocates
Act requiring a law graduate seeking enrolment as an Advocate under the
Act to undergo any pre-enrolment training as a condition for enrolment and
further finding that under the Advocates Act a person on acquiring a
qualification mentioned therein was qualified to be an Advocate, it was held
that the general rule making power did not take into its sweep the power to
provide pre-enrolment training and examination for applicants who were
seeking enrolment as Advocates. It was further held that the power of Bar
Council of India over legal education did not extend to laying down preenrolment
training. On an analysis of the provisions of the Advocates Act,
it was also held that enrolment of Advocates is a task of State Bar Council
and not of Bar Council of India and it was axiomatically held that Bar
Council of India could not exercise a rule making power thereover. It was
explained that the rule making power has to take colour from the statutory
function and cannot enable to impose additional restrictions.
90. We respectfully add that the position here is identical. The MCI Act,
vide Section 15 thereof confers a right on the person holding a recognised
medical qualification and whose name is entered in the Medical Register
maintained thereunder, to practise medicine. The said right is taken away
by the impugned Rules made under the PNDT Act which is not enacted to
address the issues of education in the field of medicine and does not contain
any statutory provisions therefor, by requiring such person to undergo
training. The same has but to be held to be not permissible.
91. Supreme Court in Kunj Behari Lal Butail Vs. State of H.P. (2000) 3
SCC 40 also held that in exercise of delegated power to legislate
circumscribed by the expression – “for carrying out the purposes of this
Act”, the State Government cannot bring within the net of the Rules what
has been excluded by the Act itself. It was further held that the legislature
cannot delegate its essential legislative functions which consist in the
determination or choosing of the legislative policy or of enacting that policy
into a binding rule of conduct. It was explained that it was very common to
the legislature to provide for a general rule making power to carry out the
purpose of the Act but while testing the validity of the said Rules, the object
and purpose of the enactment is to be found out and only if the Rules fall
within the limits prescribed by the parent Act would they be valid. It was
further held that the rule making power cannot be exercised to bring into
existence substantive rights or obligations or disabilities not contemplated
by the provisions of the Act itself. This was reiterated in Global Energy Ltd.
Vs. Central Electricity Regulatory Commission (2009) 15 SCC 570.
92. In the context of interplay between PNDT Act, and MCI Act
reference with benefit can be made to Bharathidasan University Vs. All
India Council for Technical Education (2001) 8 SCC 676 concerned with
a need for University created under the Bharathidasan University Act, 1981
to seek the prior approval of the All India Council for the Technical
Education for imparting technical education. It was held that when the
AICTE Act does not contain any evidence of any intention to belittle and
destroy the authority or autonomy of other statutory bodies having their own
assigned roles to perform, merely activated by some assumed objects or
desirabilities, the AICTE could not intervene. On a perusal of the
provisions of the AICTE Act, it was found that AICTE was not intended to
be an authority either superior to or to supervise the Universities and was
thus held not entitled to make a Regulation in the exercise of its regulation
making power, compelling the Universities to seek its prior approval. It was
further held that the fact that the Regulations had been laid before the
legislature (as is the case with the impugned Rules), did not confer them
with any more sanctity or impunity.
93. In our opinion, the position herein is identical. There is nothing in the
PNDT Act to show that it interferes in any manner with the MCI Act. What
has been permitted by the MCI Act i.e. a right to practise medicine upon
acquiring a qualification recognised under the MCI Act and having the
name entered in the Medical Register, cannot be taken away by making a
Rule under the PNDT Act requiring such persons to undergo training.
94. We therefore hold that the power of the Central Government in
exercise of Rule making power under Section 32(2)(i) of the PNDT Act to
provide minimum qualifications for persons employed at Genetic Clinics etc
does not extended to creating any new qualifications. Central Government
thereunder cannot prescribe qualifications other than those recognised by
MCI. If the Central Government is of the view that a qualification of MBBS
does not educate/equip a person to practise medicine with aid of ultrasound
machine, it can prescribe any other qualification viz. M.D. (Radiology)/
M.D. (Obstetrics), M.D.(Gynaecology) as the minimum qualification under
Section 32(2)(i) of PNDT Act. If the Central Government is of the view that
none of the qualifications recognised by MCI so equip a person, the remedy
therefor is to prescribe such qualification under the MCI Act.
95. Though in our opinion, MCI under Section 20A of the MCI Act is fully
empowered also to prescribe the professional conduct to be observed by
persons working in places where ultrasound machines are used but the Act
having made, what was earlier not an offence, an offence, the Central
Government in exercise of power under Section 32 would in our view be
entitled to prescribe such conduct. However the same, again in view of
above cannot take the form of a training or course required to be undergone
before registration under the PNDT Act but in the form of „Do‟s‟ and
"Don‟ts‟ and of which patients visiting Genetic Clinics can also be made
aware by requiring such clinics to display the same prominently and press
releases etc.
96. Though we have on an interpretation of the provisions of the PNDT
Act held hereinabove that for proper implementation and enforcement of the
Act all places having ultrasound or like machines „capable of‟ sex
determination require registration under the Act but at the same time we are
unable to interpret the provisions of Sections 4,18,29 of PNDT Act and
Rules 2(2), 3(2), 9 of the PNDT Rules requiring Genetic Clinics etc to
comply with requirements mentioned therein, as extending to those places
where a ultrasound of like machine „capable of‟ sex determination exists but
not for conducting prenatal diagnostic procedures. To interpret/hold
otherwise would tantamount to extending the application of the PNDT Act
to persons and places for whom/which it was not intended. We find merit in
the contention of petitioners that ultrasound as a diagnostic tool has
application for procedures other than pre-natal also and requiring places
having ultrasound machines "capable of‟ determining sex but not intended
and used for prenatal diagnostic procedure to also comply with requirements
of a genetic clinic serves no purpose. We are afraid, it may raise cost of
medical treatment and put a unnecessary strain on doctor-patient
relationship. Supreme Court recently in Lal Shah Baba Dargah Trust Vs.
Magnum Developers MANU/SC/1437/2015 reiterated Mangin Vs. IRC
(1971) 1 All ER 179 (PC) laying down that the object of the construction of
a Statue being to ascertain the will of the legislature, it may be presumed
that neither injustice nor absurdity was intended – if therefore a literal
interpretation would produce such a result and the language admits of an
interpretation which would avoid it, then such an interpretation may be
adopted. We are of the view the language of the Act and the Rules permits
an interpretation, though making registration mandatory for possessing a
ultrasound or like machine „capable of‟ determining sex but not mandating
fulfilment of the provisions of the Act and the Rules for use thereof for
prenatal diagnostic procedures, if not used therefor.
97. We, in this respect concur with the view aforesaid of the High Courts
of Bombay, Kerala and Punjab and Haryana and adopt the same.
98. We accordingly dispose of these petitions with the following
declarations / 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
recognised 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 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 Centre;
(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 the 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.
No costs.
RAJIV SAHAI ENDLAW, J.
CHIEF JUSTICE
FEBRUARY 17, 2016
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