AFR
Judgmentreserved on 18.04.2013
Judgmentdeliveredon 17.05.2013
CivilMisc.Writ PetitionNo.21395of 2013
Dr Dwarika Prasad v. State of U.P. & Ors.
Hon. SunilAmbwani,J.
Hon. ManojKumarGupta,J.
1. We have heard Shri S.P. Giri, learned counsel for the
petitioner. Learned Standing Counsel appears for the State
respondents.
2. The petitioner is a qualified and registered medial
practitioner. He also claims to have undergone training in
Ultrasonography in the year 1997 at Indian College of Medical
Ultrasound, which is running basic ultrasound training course in
OBC & GYN Sonography. He owns Ultrasound machine and is
providing ultrasound test facilities in the name of 'Ashish
Ultrasound and X-rays Center' Hospital Road Padrauna District
Kushi Nagar since 2003.
3. In this writ petition the petitioner has prayed for quashing
the order dated 16.3.2013 passed by the District Magistrate/
Appropriate Authority, Kushi Nagar by which he has cancelled
License No.01 dated 29.12.2006 granted to 'Ashish Ultrasound
and X-rays Center Hospital Road Padrauna District Kushi Nagar',
to run the Ultrasound Test Center on the grounds that the
petitioner has violated the provisions of Section 4 (3) of the 'Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of
Sex and Selection) Act, 1994 (PC & PNDT Act, 1994) and Rule 9
(4) and Rule 10 (1-A) of the Rules framed under the Act.
4. It is stated by learned counsel for the petitioner that the
petitioner is running Ultrasound Centre since 2003 without any
complaintfromanyperson. Heis submitting statutoryreturns and
forms to the satisfaction of the registration authority. The
petitioner claimstobea highly qualified medical practitioner with
2
MBBS (1968) and M.S. (1971) Degrees and experience in
ultrasonography. He maintains records in accordance with the
provisions of the Act and the Rules and has published a public
notice by putting up a board in front of his clinic that there is
restriction of diagnosis for sex selection by ultrasound machine,
which amounts to an offence.
5. It is submitted that a news report was published by Dr.
NeelamSingh, a gynecologist,an activist associated with 'Save the
Girl Child' reporting the sex ratio in Distt. Kushi Nagar is 694 girls
to 1000 boys, as against the national sex ratio of 940 girls to 1000
boys. The report is not authentic and was published to give a
wrong information to the people of Distt. Kushinagar. The report
is also highly improbable and much below the census report of
2011, which gives sex ratio of 955/1000. The report published by
Dr. Neelam Singh was neither seen nor placed before the
appropriate authorityparticularlybeforethe Advisory Board or the
Advisory Committee. The district administration appears to be
falsely alarmed by the report and decided to take action. On
16.2.2013 the Chief Medical Officer and the Sub Divisional
Magistrate, Kushi Nagar inspected the petitioner's clinic and
without calling for any explanation from the petitioner sealed the
clinic unauthorisedly by an illegal and arbitrary action. A show
cause notice was, thereafter, issued to the petitioner on 19.2.2013
referring to the inspection dated 16.2.2013, seeking his
explanation with regard to use of ultrasound machine in his clinic.
The petitioner submitted his reply on 27.2.2013, which was duly
received by the District Magistrate. In his reply the petitioner
submitted that vague allegations have been levelled against him
that he has not complied with the provisions of Section 4 (3), 9
(1), 9 (4) and 10 (1-A) of the PC & PNDT Act, 1994 and that
Form-F was not properly maintained.
6. It is submitted by learned counsel for the petitioner that the
petitioner has been maintaining all the forms as prescribed under
3
the Act and the Rules, and as a qualified and registered medical
practitioner he has right to run the clinic. The entire action was
illegal, arbitrary and unjustified.
7. It is further submitted by learned counsel appearing for the
petitioner that the allegations against the petitioner are only
confined to the non-maintenance of the records under Rule 9 and
10 of the PC & PNDT Rules. The petitioner had not only given
detailed reply to the show cause notice but had also offerred to
produce the entire record. The petitioner has submitted that he
uses ultrasound machine for clinical examination of the patients
for diagnosis for stomach and other ailments. The monthly report
is sent to the Chief Medical Officer giving the date, name, age,
father/husband's name, address, name of the referral doctor with
signature or thumb mark of each patient. A warning is also
published bythe petitioner on the noticeboard inhisclinic that the
ultrasound test is not used in the clinic for determination of sex.
8. The petitioner in his reply dated 27.2.2013 prayed for
withdrawing the notice, return of the records and to deseal his
clinic. The District Magistrate, however, instead of considering
the reply after giving the details of the female to male ratio in the
district, based only on the allegations that the petitioner is not
maintaining the records properly, cancelled the license. It is
submitted that the order cancelling the license is founded upon the
facts and figures of which notices were not given to the petitioner
nor is the petitioner responsible for any sex determination and the
abortions, which may have reduced the sex ratio in the district. It
is submitted that the sex ratio in the district is also not authentic
and could not have been used to cancel the petitioner's license. The
petitioner is qualified and authorised medical practitioner. His
fundamentalright toprofessionhas beenaffectedbyArt.19(1)(g)
of the Constitution of India without any reasonable basis and
following due process of law.
4
9. We have examined the show cause notice and the replies
submitted by the petitioner and find that the petitioner has
admittedin para 4 of his reply that he did not submitreportson the
prescribed format (Form-F). In para 5 of his reply dated 27.2.2013
the petitioner has stated that the Chief Medical Officer did not
inform him in any of the meeting that the reports have to be sent
on the format (Form-F). The office of the Chief Medical officer
never objected to the submission of thereports by the petitioner on
thegroundthat theyarenot onthe prescribedformat(Form-F). In
para 7 of his reply the petitioner stated that the entire records
available with him were provided to the Chief Medical Officer on
the date of inspection on 16.2.2013,which was taken inpossession
and the clinic was sealed without giving any receipt of the record.
10. The petitioner has annexed the news items published in
‘Timesof India’dated 22
nd
March, 2013reportingtheactingtaken
in District Kushi Nagar against the ultrasound clinics. The news
report shows that in the day long crackdown launched by District
Magistrate Shri Rigzin Sampheal, the inspecting party sealed nine
ultrasound centres after‘TimesofIndia’reportedabout the district
recording lowest sex ratio at birth in the country in the wake of
these test centres that have mushroomed all over the place. Out of
65 ultrasound centres in the district 60% has come up in the last
five years. The report further states that comparing the 0-6 years
female; male ratio between census 2001 and 2011, sex ratio in
Kushinagar recorded a decline of 38 points.
11. The petitioner has annexed the Kushi Nagar District
Population Census, 2001, Uttar Pradesh, literacy, sex ratio and
density in which sex ratio (per 1000) child, sex ratio (0-6 age) is
reported as 955 as against 963 in the year 2001. Dr. Nileema
Singh reported fall of sex ratio far below the ratio shown in the
census at 917 in the year 2011 per 1000 male as against 953 per
1000 male in the year 2001. The District Magistrate has quoted
5
this ratio in the opening paragraph of the impugned order as
follows:-"The comparative census for the year 2001 and 2011 for
district Kushinag ar stands as noted belo w:
2011 2001
Male and female ratio in total
popu lation of dis trict
1000 955 1000 960
Population of 0 to 6 years
children
1000 917 1000 953"
12. TheDistrict Magistrate hasshownhisconcern at the drastic
fall in the number of female per thousand male in District
Kushinagar and has observed that this shocking reduction in the
percentage of girl child during last census is complimented by
reports of large scale anomalies and non-compliance of required
norms under PC & PNDT Act by various ultrasound clinics in the
district. As per the report of the Chief Medical Officer, Kushinagar
dated 12.2.2013 out of 65 registered ultrasound centres running in
the district none has submitted the records as required under
Section 29 and Rule 9 (4) under the PC & PNDT Act. Bases on
these facts the District Magistrate found that there is strong
possibility of hidden relation between mushrooming number of
ultrasound clinics and the shocking fall in the percentage of girl
child in District Kushinagar, which demanded immediate
inspection of ultrasound clinics. The severity of the problem in
the district can be assessed from the fact that the district stand at
67
th
position out of 71 districts surveyed for sex ratio in the State
of U.P.
13. The District Magistrate carried out random inspections of
22 ultrasound centres across the district by team consisting of
government doctors and support staff from the revenue
department. In the case of 'Ashish Ultrasound and X-ray Centre',
Hospital Road, Padrauna, run by the petitioner the inspection was
made by team of Chief Medical Officer Dr.Sanjeev Kumar Gupta
and S.D.M. Shri B.L. Maurya on 16.2.2013. The team reported
6
that Dr. D.P. Agrawal-the petitioner was present in the clinic. He
had shown the equipment but did not produce the registration
certificate. The maintenance of records was not found in
accordance with the Rules and thus the clinic was sealed. On the
basis of the inspection report dated 16.2.2013 a show cause notice
was issued on 19.2.2013 to which the petitioner submitted a reply
of which paragraphs 4, 5and 6 have beenreferred toas above and
on which it was found that the petitioner is not furnishing records
on prescribed Form-F.
14. The District Magistrate has, thereafter, referred to the
provisions of Section 20 and 29 of the PC & PNDT Act and Rule
9 of PC & PNDT Rules, which provide as follows:-"20. Cancellation or suspension of registration.-(1) The Appropriate Authority may suo moto, or on
complaint, issue a notice to the Genetic Counselling
Centre,Genetic Laboratory orGenetic Clinic to showcause
why its registration should not be suspended or cancelled
for the reasons mentioned in the notice.
(2) If, after giving a reasonable opportunity of being heard
to the Genetic Counselling Centre, Genetic Laboratory or
Genetic Clinic and having regard to the advice of the
AdvisoryCommittee, the AppropriateAuthorityis satisfied
that there has been a breach of theprovisions of this Act or
the rules, it may, without prejudice to any criminal action
that it may take against such Centre, Laboratory or Clinic,
suspendits registration forsuchperiod as it maythink fitor
cancel its registration, as the case may be.
(3) Notwithstanding anything contained in sub-sections (1)
and (2), if the Appropriate Authority is, of the opinion that
itisnecessary or expedient so to do in the public interest, it
may, for reasons to be recorded in writing, suspend the
registration of any Genetic Counselling Centre, Genetic
Laboratory or Genetic Clinic without issuing any such
notice referred to in sub-section (1).
29. Maintenance of records. (1) All records, charts,
forms, reports, consent letters and all other documents
required to be maintained under this Act and the rules shall
be preserved for a period of two years or for such period as
may be prescribed:
7
Provided that, if any criminal or other proceedings are
instituted against any Genetic Counselling Centre, Genetic
Laboratory or Genetic Clinic, the records and all other
documents of such Centre, Laboratory or Clinic shall be
preserved till the final disposal of such proceedings.
(2) All such records shall, at all reasonable times, be made
available for inspection to the Appropriate Authority or to
any other person authorised by the Appropriate Authority
in this behalf.
Rule9.Maintenance and preservationofrecords
4. The record to be maintained by every Genetic Clinic
including a Mobile Genetic Clinic, in respect of each man
or woman subjected to any pre-natal diagnostic procedure/
technique/ test, shall be as specified in form F."
15. The petitioner has filed a supplementary affidavit affirmed
by him on 17.4.2013, stating therein that no appropriate
opportunity of hearing was afforded to the petitioner. There was
no meeting held at any time nor any guideline was issued or
provided to the petitioner either by Advisory Board or Advisory
Committee and that the District Magistrate has no authority in the
technical matters as under Section 17 of the Act Chairperson of
the Advisory Committee is Joint Director of Health and Family
Welfare. The order impugned has been passed by the District
Magistrate without any authority. He has annexed the records
maintained by him under Rule 9 (8) of which he has submitted
monthly report of the clinical tests carried out by his Centre from
2.1.2012 to 28.2.2012 (25+18 entries); a copy of the register with
2entries of November 2012;copyofthe register with 8 entries for
July,2012;copyof theregisterwith 16entriesfor August, 2012; a
copy of the register with 17+6 entries of September, 2012; a copy
of the register with4 entries of October,2010; copy of the register
with 2 entries of November, 2012; copy of the entries of the
register with 10 entries of November, 2011; copy of the register
8
with 4 entries of the month of December, 2011 and copy of the
register with 17 entries of the month of October, 2011.
16. The details of the copies of the registers enclosed with the
supplementary affidavit have been mentioned by us in seriatim,
whereas these have been annexed by petitioner on random basis.
There is no record or proof nor any defence was taken in reply to
show cause notice or in this Court that all these tests were carried
out as diagnosis of any ailments other than for sex-selection on
pregnant women.
17. A perusal of the entries of the register annexed by the
petitioner along with supplementary affidavit not only confirms
thefears andthe observance of theDistrict Magistrateon the basis
of which he has cancelled the license, they also disclose shocking
facts to the Court and which virtually amount to admission made
by the petitioner of sex determination tests carried out by him in
his clinic. Almost all the entires in the register of the year 2011-12
except a few are of young females between the age group of 19 to
32 years and most of the reference has been made by Dr. M.
Chaudhary. We have closely examined these entries to find out
whetherthe petitioner is using ultrasoundmachine for diagnosis of
any ailments other than sex determination. The copies of register
annexed to supplementary affidavit confirm that all except a few
tests have been carried out on young females of the reproductive
age.
18. The records produced by the petitioner clearly demonstrates
that the petitioner is using ultrasound as diagnostic machine for
anyailments. He is only examiningyoung females betweenage of
19 to 32 years of reproductive age. The copy of register annexed
by the petitioner with his affidavit of February, July to December,
2012 confirms the findings of the District Magistrate that the
petitioner is usingultrasoundmachinesonlyforthepurposeof sex
determination of young married females, and that too on the
references made to the petitioner only two doctors namely Dr. M.
9
Chaudhary and Dr. Mahesh. No other doctor refers cases to the
petitioner.
19. This Court has repeatedly issued directions in Contempt
Application (C) No.820 of 2002 to the registration authorities to
carry out the inspection of the ultrasound clinics run by both
registeredand qualifiedaswellastheunqualifiedandunregistered
doctors, in compliance with the provisions of the PC & PNDT
Act. Those persons, who are running ultrasound machines and
nursing homes for sex determination should be sternly dealt with
under the provisions of the Act. In the order dated 11.5.2012 in
ContemptApplicationNo.820 of 2002,thisCourthas directed that
if they are found indulged in sex determination, their clinics
should be sealed and they should also be prosecuted.
20. In Voluntary health Association of Punjab v. Union of
India & Ors., WritPetition (Civil)No.349of 2006 the Supreme
Court has observed in its order dated 4.3.2013 as follows:-"Indian society’ s discrimination towards female
child still exists due to variou s reasons which has its roots
in the social behaviour and prejudices against the female
child and, due to the evils of the dowry system, still
prevailing in the society, in spite of its prohibi tion under
the Dowry Prohibit ion Act. The decline in the female child
ratioall overthe country leads to an irre sistible concl usion
that the practi ce of eliminating female foetus by the use of
pre-nat al diagnostic techniques is widely preval ent in this
country. Complaints are many, where at least few of the
medical professiona ls do perform Sex Selective Abortion
having full know ledge that the sole reason for abortion is
becaus e it is a female foetus. The provisions of the Medical
Termination of Pregnancy Act, 1971 are also being
consciousl y violated and misused.
The Parliament wanted to prevent the same and
enacted the Pre-Conception and Pre-Na tal Diagnostic
Techniques (Prohibition on Sex-Selection) Act, 1994 (for
short ‘the Act’) which has its roots in Article 15(2) of the
Constitution of India. The Act is a welfare legislation. The
Parliament was fully conscious of the fact that the
incre asing imbala nce between men and women leads to
incre ased crime against women, trafficking, sexual assault,
polygamy etc. Unfortu nately, facts reveal that perpetrator s
10
of the crime also belong to the educated middle class and
often they donot perceive th e gravityofthe crime.
This Court, as early as, in 2001 in Centre for
Enquiry into Health and Allied Themes v. Union of India
(2001) 5 SCC 577 had noticed the misuse of the Act and
gave various directions for its proper implementation.
Non-compliance of various directions was noticed by this
Court again in Centre for Enquiry into Health and Allied
Theme s v. Union of India (2003) 8 SCC 398 and this Court
gave variou s othe r directions.
2011 Census of India, published by the Office of the
Registra r General and Census Commissio ner of India,
would show a decline in female child sex ratio in many
States of India from 2001-2011. The Annual Report on
Registration of Births and Deaths - 2009, published by the
Chief Registra r of NCT of Delhi would also indica te a
sharp decline in the female sex ratio in almo st all the
Districts. Above statistics is an indi cation that the
provisions o f th e Actarenot proper ly and ef fectively being
impleme nted. There has been no effective supervision or
follow up action so as to achieve the object and purpose of
the Act. Mushrooming of various Sonograph y Centres,
Genetic Clinics, Genetic Counselling Centres, Genetic
Laboratorie s, Ultras onic Clinics, Imaging Centres in
almo st all parts of the country calls for more vigil and
attention by the authorities under the Act. But,
unfortunately, their functioning is not being properl y
monitored or supervised bytheauthorities unde rthe Actor
to find out whether they are misusing the pre-nata l
diagno stic tech niques for determination of sex of foetus
leading to f oeticide.
The Union of India has filed an affidavi t in
September 2011 giving the details of the prosecutions
launched under the Act and the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibit ion on Sex-Selection) Rules, 1996 (for short ‘the Rules’), up to June
2011. We have gone throu gh the chart as well as the data
made available by various States, which depic ts a sorry
and an alarming state of affairs. Lack of proper
supervision and effective implem entation of the Act by
variou s States, are clearly demon strated by the details
made availabl e to this Court. However, State of
Maharashtra has compar atively a better track record.
Seldom, the ultrasound machines used for such sex
determin ation in violation of the provisions of the Act are
seized and, even if seized, the y are being released to the
violato rs of the law only to repeat the crime. Hardly few
cases end in convic tion. Cases booked under the Act are
11
pending disposal for several years in many Courts in the
country and nobodytakes any inter est in their disposa l and
hence, seldom, tho se cases end in conviction and
sentences, a fact well known to the violato rs of law. Many
of the ult ra-so nography clinics seldom maintain any reco rd
as per rules and, in respect of the pregnant women, no
records are kept for their treatment and the provisions of
the Actandthe Rules are being violated with impunity.
The Central Governme nt vide GSR 80(E) dated
7.2.2 002 issued a notification amending the Act and
regulating usage of mobile machine s capable of detecting
the sex of the foetus, including portable ultrasonic
machines, except in cases to provide birth services to
patients when used within its registered premises as part of
the Mobile Medical Unit offering a bouquet or other
medical and health services. The Central Governm ent also
vide GSR 418(E) dated 4.6.2012 has notified an
amendment by inserting a new Rule 3.3(3) with an object
to regulate illegal registrations of medical practit ioners in
genetic clinics, and also amended Rule 5(1) by increasin g
the applicat ion fee for registration of every genetic clinic,
genetic coun selling centr e, genetic laborato ry, ultrasound
clinic or imaging centr e and amended Rule 13 by
providing that an advance notice by any centre for
intimation of every chang e in place, intimation of
employees and addres s. Many of the clinics are tota lly
unaware of thos e amendments and are carrying on the
same practises."
21. The Supreme Court has in the same order dated 4.3.2013
given directions to all the authorities as follows:-"1. The Central Superviso ry Board and the State and
Union Territories Supervisory Boards, constituted under
Sections 7 and 16A of PN&PNDT Act, would meet at least
once in six months, so as to supervise and oversee how
effective is th e implementation o f the PN&PNDTAct.
2.The State Advisory Committees and District Advisory
Committees should gather inform ation relating to the
breach of the provisions of the PN&PNDT Act and the
Rules and take steps to seize reco rds, seal machines and
institute legal proceedings, if they notice violation of the
provisions of the P N&PNDTAct.
3.The Committees mention ed above should repo rt the
details of the charg es framed and the convict ion of the
persons who have committe d the offence, to the State
12
Medical Councils for proper action, including suspensio n
of the registr ation of the unit and cancel lation of licence to
practi ce.
4. The authorities should ensure also that all Genetic
Counselling Centres, Genetic Labor atories and Genetic
Clinics, Infertility Clinics, Scan Centres etc. using pre-conception and pre-nata l diagnostic techniques and
procedures should maintain all reco rds and all forms,
required to be maintained under the Act and the Rules and
the duplicate copies of the same be sent to the concer ned
District Authorities, in accordance with Rule 9(8) of the
Rules.
5. States and District Advisory Boards should ensure that
all manufacture rs and sellers of ultra-so nography
machines do not sell any machine to any unregister ed
centre, as provided under Rule 3-A and disclose, on a
quarter ly basis, to the concerned State/Union Territory
and Central Government, a list of persons to whom the
machines have been sold, in accordance with Rule 3-A(2)
ofthe Act.
6. There will be a direction to all Genetic Counselling
Centres, Genetic Laborato ries, Clinics etc. to maintain
forms A, E, H and other Statutory forms provided under
the Rules and if thes e forms are not properl y maintained,
appropriate action should be taken by the authorities
concern ed.
7. Steps should a lso be taken by the State Gove rnme ntand
the authorities under the Act for mapping of all registered
and unregister ed ultra-so nography clinics, in three months
time.
8. Steps should be taken by the State Governme nts and the
Union Territories to educate the people of the necessity of
implementing the provisions of the Act by conducting
workshops as well as awareness camps at the State and
Districtlevels.
9. Special Cell be constitute d by the State Governments
and the Union Territories to monitor the progress of
various cases pending in the Courts undertheAct and take
steps f or their ea rly disposa l.
10. The auth oritiesconcer nedshouldtake steps to sei ze the
machines which have been used illegally and contrar y to
the provisions of the Act and the Rules thereunder and the
seized machine s can also be confiscated under the
13
provisions of the Code of Criminal Procedure and be sold,
in accordance withlaw.
11. The various Courts in this country should take steps to
dispose of all pending cases under the Act, within a period
of six months. Commu nicate this order to the Registrar s of
various High Courts, who will take appropriate follow up
actionwith due intimation to th e concer ned Courts.
All the State Governm ents are directed to file a
status r eport within a period ofthre e months from today.
Orderedaccordingl y.
....... ...... ...... ...... ...... ...... ...... .J.
(K. S. RADHAKRISHNAN )"
22. In a separate but concurring order Hon’ble Mr. Justice
Dipak Misra, J. has given his opinion in the same case, an extract
of which is quoted as below:-"4. Be it noted, this is not for the first time that this Court
is showin g its concern. It has also been done before. In
Centre for Enquiry into Health and Allied Them es
(CEHAT) and others v. Union of India and others1, the
two- Judge Bench comme nced the judgme nt stating that the
practi ce of female infantici de still prevail s despite the fact
that the gentle touch of a daughte r and her voice has a
soothing effect on the parents . The Court also comme nted
on the immor al and unethical part of it as well as on the
involvement of the qualified and unqualified doctors or
compounders to abort the foetus of a girl child. It is
apposite to state here that certain directions were given in
the s aiddecision.
5. Female foeticide has its roots in the social thinking
which is fundamenta lly based on certain erroneous
notion s, ego-centric traditions, pervert perception of
societal norms, and obsession with ideas which are tota lly
indi vidualistic sans the collective good. All involved in
female foeticide deliberatel y forget to realize thatwhen the
foetus of a girl child is destroy ed, a woman of future is
crucified. To put it differently, the present generation
invites the sufferings on its own and also sows the seeds of
suffering for the future generation, as in the ultimate
eventuate , the sex ratio gets affected and leads to manifold
social problems. I may hasten to add that no awareness
campaign can ever be compl ete unless there is real focus
14
on the prow ess of women and the need for women
empowe rment.
6. On many an occasion this Court has expressed its
anguish over this problem in many a realm. Dealing with
the unfortunate tradition of demand of dowr y from the
girl’s parents at the time of marriag e despite the same
being a criminal offence, a two-Judge Bench in State of
H.P. v. Nikku Ram and others has expressed its agony
thus : -“Dowr y, dowry and dowry. This is the painf ul
repetition which confronts , and at times haunts,
many parents of a girl child in this holy land of ours
where, in good old days the belief was : [“Yatra
naryastu pujyante ramante tatra dewatah” ] (where
woman is worshipped, there is abode of God). We
have mentioned about dowr y thrice, becaus e this
dema nd is made on three occasion s: (i) before
marriage; (ii) at thetime of marriage; and (iii) after
the marriage . Greed being limitles s, the demands
become insatiable in many cases, followed by
torture on the girl, leading to eithe r suicide in some
cases or murder in s ome.”
The aforesaid passa ge clearly reflects the deg ree of
anguish of this Court in regard to the treatment meted out
to the w omen in this country .
7. It is not out of place to state here that the restricted and
constricted thinking with regard to a girl child eventually
leads to female foeticide. A foetus in the womb, becaus e
she is like ly to be born as a girl child, is not allowed to see
the mother earth. In M.C. Mehta v. State of Tamil Nadu
and others, a thre e-Judge Bench, while dealing with the
magnitude of the problem in engagement of the child
labo ur in variou s hazardous factories or mines, etc.,
speaking through Hansaria, J., commenced the judgment
thus :-“I am the child.
All the wordwaitsformy coming.
All the earth watche s with inte restto s ee
what Ishall become.
Civilizat ion ha ngs in the bal ance.
For wh atIam, the w orldof tomo rrow wil l
be.
I am the child.
You holdin y our handmy destiny.
15
You determine, l argely, wh ether I shall
succeed or fail,
Giveme, Ipray y ou, thes e thing s that make
for happiness.
Train me, Ibeg y ou, that I may be a
blessing to th e world.”
8. The aforesaid linesfrom Mamie Gene Cole were treated
as an appea l by this Court and the Bench reproduced the
famous line from William Wordsworth “child is the father
of the man”. I have reproduced the same to highlight that
this Court has laid special empha sis on the term “child”
as a child feels that the entire world waits for his/he r
coming. A female child, as stated earlier, becomes a
woman. Its life-spark cannot be exting uished in the womb,
for such an act would certainly bring disaster to the
society. On such an act the collective can neither laugh
today nor tomo rrow. There shall be tea rs and tear s all the
way because eventua lly the spirit of humanity is
comatos ed.
9. Vishwakavi Rabindranath Tagore, while speaking about
a child, had said thus : -“Every child come s with the message that God is not yet
discouraged of man.”
10. Long back, speaking about human baby, Charles
Dickenshad saidth us :-“Every baby born into the world is a finer one than the
last.”
11.Awoman has toberegardedas an equal partner in the
life of a man. It has to be borne in mind that she has also
the equa l role in the society, i.e., thinking, partici pating
and leadership. The legislature has broug ht the present
piece of legislation with an intention to provide for
prohibit ion of sex selection before or after conception and
for regulation of pre-nata l diagnostic techniques for the
purpose s of detecting genetic abno rmalities or metabolic
disorders or chromo soma l abnorm alities or certain
cong enital malformations or sex-linked disorders and for
the prevention of their misuse for sex determination
leading to female foeticide. The purpos e of the enactment
can only be actua lised and its object fruitfu lly realized
when the autho rities under the Act carry out their
functions with devotion, dedicat ion and commitment and
further there is awakened awareness with regard to the
role ofwomen in a s ociety.
16
12. It would not be an exaggeration to say that a society
that does not respect its women cann ot be treated to be
civilized. In the first part of the last centur y Swami
Vivekanand had said: -“Just as a bird could not fly with one wing only, a nation
wouldnot ma rch forwardif th e wom en are left behind.”
13. When a female foeticide takes place, every woman who
mothers the child must remember that she is killing her
own child despite being a mother. That is what abortion
would mean in social terms. Abortion of a female child in
its conceptual eventua lity leads to killing of a woman. Law
prohibits it; scriptures forbid it; philo sophy condem ns it;
ethics deprecate it, morality decries it and social science
abhor s it.HenrikIbs en empha sized on the indiv idualism of
woman. John Milton treated her to be the best of all God’s
work. In this conte xt, it will be appropriate to quote a few
lines from Democracy in America by Alexis De
Tocqueville: -“If I were asked ... to what the singular prosperity and
growing strength of that people [Am ericans] ought mainly
to be attributed, I should reply: to the superiority of their
women.”
23. It is unfortunate that in a civilized country like India some
people for their petty gains are using modern technology for sex
determination,whichultimatelyleadsto abortionoffemale foetus.
We are pained to observe that the qualified and registered doctors
running ultrasound clinics are using the modern developments in
technology to determinethe sexof the child in womb,which leads
to sex selection abortion of female foetus. In the last about 10
years with the availability of advanced ultrasonogrphy techniques,
the doctors in our country have been responsible for abortions of
about 10 million women, killing female children in womb. This
mass carnage of female foetus in womb has made the Indian
doctors responsible for the crimes, which has no parallel in the
history of modern medical science. The number of deaths of
female children in womb (female foeticide) in the last decade has
exceeded the total deaths in the first and second world war. The
17
Indian Legislature enacted DNDT Act in 1994 and then amended
it in 1996 regulating pre-conception genetic clinics and
counselling, and genetic laboratories. The executive has, however,
failed to implementtheAct in itstruespirit. Wemayobservethat
as directed by the Supreme Court the sealing of the clinics and
cancellation of the license by itself is not sufficient deterrent
unless registration of such doctors with Medical Council of India
or Indian Medicine Council of India as the case may be is
cancelled and they are prosecuted, for carrying out sex
determination. We are sad to observe that except for few cases in
Maharashtra and Delhi the executive in the State of U.P. made
responsible for enforcement of PC & PNDT Act has not taken
effective steps to seal the clinics and to prosecute the doctors.
Recently the Maharashtra Medical Council has suspended
registrationof6 doctorsforfloutingguidelines ofthePC& PNDT
Act and 2 doctors have been sent notice for violating the Act in
accordance with the report of Shri Anoop Satphale while charges
have been framed against 69 doctors, 8 cases were sent to Ayurved
Council and 7 have been directed to Homeopathic Council. The
Maharashtra Medical Body has cancelled registration of about 66
doctors and cases were filed against 400 for violation of PC &
PNDT Act.
24. In the circumstances, while upholding the order of the
District Magistrate, who has made a commendable job in carrying
out inspections, sealing clinics and cancelling registrations on
finding gross violations of the provisions of PC & PNDT Act,
1994 and Rules of 1996, after giving notice to the ultrasound
clinics, we direct him to refer the petitioner's case to the Medical
Council of India, for suspension and for taking disciplinary action
for misconduct for cancelling his registration and to initiating
criminal action against him for carrying out sex determination
tests; failing to maintain and furnish records and in submitting
prescribed Form-F in accordance with the provisions of the Rules,
18
and for carrying out ultrasonography tests, on young females of
reproductive age conclusively indicating that there tests were
carried out for sex determination, which is a punishable offence
under PC & PNDT Act.
25. The writ petition is dismissed with the observations and
directions as above, which will be carried out by the District
Magistrate within a period of one month from the date the order is
communicated to him.
26. A copy of the order shall be given to the Chief Standing
Counsel, Government of U.P. for compliance.
Dt.17.05.2013
SP/
allahabadhicourt.kushinagar
No comments:
Post a Comment