Abstract
The reason for selecting these two legislations together for discussion is because of their importance in 21st century. These two[1] legislations are gaining importance in nowadays, though legislated nearly before more than one-and-half decades. The purpose of twin selection is also to bring to fore the mentality of Indians first to see that they could know the fetus and do away if it is a female child but if she is born, and after she goes to matrimonial home, the violence she may face is focused and to curb these tendencies these special legislations were enacted in the years 1994 and 2005.
The twin topics taken for study have to be researched in two different ways. Critical as well as analytical deductions which would mean to be objective and reform would not be the main objective. Critical study expresses opinion and evaluation of the subject taken for study. The study would mean segment the structure of the work taken for study. The study would reveal the factual matrix and importance of the study and reaction to the legislative intent and drawbacks is on validity or purpose of study. The study does not involve fault finding in the legislation as is normal with critical studies. The study evaluates the purpose of the legislations and judicial precedents. The study revolves not only on analysis or noting or jotting the summary of the Act taken for study, but it focuses on careful evaluation of the legislations.
The article is also based on critical as well analytical research with descriptive and exploration of what is existing law. The article partakes study of the importance of the legislative intent and observation of the researcher and therefore, both these topics have to be looked into from different angles.
Role of Judiciary in Implementing the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994
Introduction
The judiciary has great role to play in implementing Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 hereinafter referred as PNDT Act. The powers are widely given to the Judicial Magistrate as per Chapter 7 of the Act to see that the act is properly implemented and there is no violation. The Act has made the offence punishable and penalty to be imposed by courts concerned designated under the Act. The Supreme Court and High Courts have ensured that there is strict implementation of the Act and subsequent rules framed so as to bring to an end the social evil of female feticide and holding that provisions of the PNDT Act could not be diluted. In Federation of Obstetrics and Gynaecological Societies of India (FOGSI) v. Union of India[2], the High Court of Gujarat had dismissed the appeal of State against the order of single Judge who showed that the doctors concerned were unnecessarily harassed and their machines were impounded though no crime was committed. The division bench in Mehul Acharya v. Jayesh Kantilal Shah [3] upheld the order of the single Judge resealing of the sonography machine. The division bench upheld the order as there was no cogent evidence of breach of penal provisions. The courts have upheld the validity of 2012 rules framed under the Act. The legislative object was for regulating the use of pre-natal diagnostic techniques so as to detect the genetics and detect if there were any metabolic disorders and prevent the misuse of the techniques and punish the offender for which the judicial approach has to be to further the object of the Act. The main purpose of the Act and the interpretations placed by the courts is the main stay of this study. The amendment till date as interpreted by the courts is considered. The Act has been divided into 8 chapters which are critco-analytically discussed by the author. The rules under the Act were framed in 1996. The Act has to be amended time and again so as to meet the genuine methods adopted by people rather all the stakeholders. The amendment by adding ultrasound techniques and clinics has given rise to several litigations at all levels. Recently, there is serious debate about misuse due to relaxing or rather suspension of applicability of some rules framed under the Act during this pandemic. It would be relevant to mention that there were several days on which debate was going on in the parliament; the author does not wish to elaborate on the same as the theme is mainly focused on role of judiciary.
It is normally the function of the government to implement laws enacted by the legislature. But when the government fails to do so, resort is taken to judiciary. The primary credit for implementation of the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Amendment Act, 2002 goes to the judiciary. The PNDT Act was enacted by Parliament in 1994. However, it came into operation after 2 years, on 1-1-1996 and even after lapse of 5 years neither the Central nor the State Governments had taken any action for its implementation. Hence, the judiciary had to take upon itself the task of giving effect to the said Act. There are series of petitions filed either suo motu or being moved by NGOs in which the Supreme Court and the High Courts, have issued various directions and pronounced orders to the Central and the State Governments for creating public awareness and for effective implementation of this Act.[4]
Historical Background
There is abhorrent practice of sex determination and sex selection going on since long time. Immemorial patriarchal influence can be seen in all parts of India and in all spheres of life. In the 1991 census, there was a finding that ratio of girls was much less. Child sex ratio shows that fall in girl child were dangerous. There have been findings and studies, which show that even in 21st century, there was a strong preference for boys than that for the girl child. The practice to determine sex of fetus due to advancement in techniques had forced the government to bring legislation so that female feticide could be stopped or regulated there was a need for a comprehensive legislation making gender-testing illegal in Indian States. The distortion is now possible due to use of selective techniques which would help the parents to get rid of unwanted daughters. Number of females per 1000 males in the State of Gujarat was alarming and getting less. During last twenty years, there was a fall of 21 girl child per 1000 male child. 1981 showed the female ratio was 962 whereas in 2001 it has decreased to 927. Because of these factors, the Central Government decided to legislate for curbing of the sex determination and sex selection techniques, which are pre-birth techniques. The Supreme Court was forced to give directions to the legislatures and that is why the Pre-conception and Pre-natal Diagnostic Techniques Act came to be amended in the year 2003. The said amendment came into force from 14-2-2003. The Act came in force after lot of deliberations. The law has been supported by several NGOs, census authorities and Government Officials and the media. The Act has been amended time and again so to circumvent the evils committed by use of latest technologies. It would be relevant to mention that there were several days on which debate was going on in the parliament, the author does not wish to elaborate on the same as the theme is mainly focused on role of judiciary. The debates are enumerated in Lok Sabha debates Tenth Series Eleventh Session.[5]
The bill was discussed as Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Bill.
Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) AND PC and PNDT Act
It is of significance that as early as 1979 the United Nations General Assembly which can be said to international treaty which has been ratified by more than hundred countries and came into force on 3-9-1981. It has several facets, the main being taking appropriate measures to eliminate discrimination against women. India has ratified the treaty on 9-7-1983. The principle of the treaty can be briefly stated to be obligation to protect obligation to respect and eliminate gender discrepancies. Assessment of situation is done by a committee.
Reasons for Declining Sex Ratio and Critical Analysis of Statistical Data of Sex Ratio
The reason for declining sex ratio is the petrified social attitude and the lack of sensitivity. Pre-natal diagnostic techniques can be used to detect a range of genetic abnormalities. The techniques have also been used to detect the sex of the fetus. The sex-determination tests have often been followed by abortion if the fetus has been detected to be female. In order to prohibit the misuse of pre-natal diagnostic techniques for determination of the sex of the fetus whilst permitting a regulated use of such techniques for the purpose of detection of specific genetic abnormalities or disorders the statute has employed the strategy of surveillance through registration.
Critical and Analytical Study of Working of Pre-Natal Diagnostic Techniques (Prohibition Of Sex Selection) Act Legislation and Rules framed therein
The Supreme Court so as to ensure effective implementation of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 passed detailed orders in public interest litigation being Centre for Enquiry into Health and Allied Themes (CEHAT) v. Union of India; referred as Cehat v. Union of India[6]; Furthering the direction issued by the Supreme Court on 4-5-2001, it held that the Central and State Government should issue advertisements to create awareness in the public against discrimination between male and female children. It also directed that the appropriate authorities responsible for implementing the Act have to publish annual reports, which are to be available to the public. In order to streamline the effective functioning of the PNDT Act, the Court issued directions for the functioning of the supervisory boards and also directed that the national monitoring of the inspection committee shall continue to function until the Act is effectively implemented.
The Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Amendment Act, 2002 came into force in 2003. The reason for amending the 1994 Act, is captured by the substituted long title of the Act which now reads “An Act to provide for the prohibition of sex selection, before or after conception, and for regulation of pre-natal diagnostic techniques for the purpose of detecting genetic abnormalities or metabolic disorders or chromosomal abnormalities or certain genital malformations or sex-linked disorders and for the prevention of the misuse of sex-determination leading to female foeticide and for matters connected therewith or incidental thereto”. One of the important aspects of the amendment is to prevent tests for sex selection from being conducted by any specialist. Further, the Act now prohibits the sale of ultrasound machines to persons or institutions not registered under the Act. The amendment also permits pre-natal diagnostic techniques to be used for very narrowly defined purposes such as the case of a pregnant woman above the age of 35, or a pregnant woman who has undergone two or more spontaneous abortions or the exposure of the pregnant woman to potentially teratogenic agents or in the event of the pregnant woman or spouse having a family history of mental retardation or physical deformities. The amendment act sets up supervisory boards at the State and Union Territory level to monitor the implementation of the Act and to create public awareness against the practice of sex selection leading to female foeticide. Greater powers have been conferred on the enforcing agencies under the Act. For instance, advertising pre-conception and pre-natal determination of sex is prohibited and punishment enhanced. Under the Act and the Amendment made thereafter, the state authorities have been given powers of constituting the State Supervisory Board under Section 68. The Act came to be amended after the Supreme Court directed to appoint fully empowered authority and Advisory Committee and to publish the same to create public awareness against the pre-natal diagnostic techniques and the State authorities and the State Advisory Board has to be constituted and even appropriate authorities has to be appointed by the State under Section 17. Under Section 7, the Central Government will have to constitute Supervisory Boards. The functions of the Board as envisaged under Section 16 of the Act would be as follows:
- to advise the Central Government on policy matters relating to use of pre-natal diagnostic techniques, sex-selection techniques and against their misuse;
- to review and monitor implementation of the Act and rules made thereunder and recommend to the Central Government changes in the said Act and rules;
- to create public awareness against the practice of pre-conception sex selection and pre-natal determination of sex of fetus leading to female foeticide;
- to lay down code of conduct to be observed by persons working at genetic counseling centers, genetic laboratories and genetic clinics;
- to oversee the performance of various bodies constituted under the Act and taken appropriate steps to ensure its proper and effective implementation;
- any other functions as may be prescribed under the Act.
As would be seen powers are with the government to see that the appropriate authority as well as advisory committee would be appointed by a notification in the official gazette by the Central and the State Government having regard to the intensity of the problem of pre-natal sex determination leading to the female feticide. The officers will have to be above the rank of Joint Director and the eminent woman and the officer of the Law Department of the State. The Advisory Committee would be of legal experts, medical experts and an officer dealing with information and publicity and three eminent social workers.
The most important aspects are the powers of the appropriate authority, which are brought into force by way of amendment in the Act which are enumerated in Section 17-A of the Act.
The most litigated provisions are enumerated in Chapter 7 which deals with offences and penalties which read as follows:
S. 22. Prohibition of advertisement relating to pre-conception and pre-natal determination of sex and punishment for contravention.
S. 23. Offences and penalties.
S. 24. Presumption in the case of conduct of pre-natal diagnostic techniques.
- 25. Penalty for contravention of the provisions of the Act or rules for which no specific punishment is provided.
S. 26. Offences by companies.
S. 27 Offence to be cognizable, non-bailable and non-compoundable. S.28 Cognizance of offences.
Under the rule-making power the government has time and again framed rules for better implementation of the Act.
The 2014 Rules are in this direction framed so as to train for six months before a person uses sonography machine which is knowledge and skill based.
It is important to note that under Section 3(1) of the Pre-natal Techniques (Regulation and Prevention of Misuse) Act, 1994 a genetic counseling center, genetic laboratory, and genetic clinic can undertake, associate or assist in conducting activities relating to pre-natal diagnostic techniques only if such organisation is registered under the PDTA. In order that the purpose of registration is not defeated, S.3(3) prohibits medical geneticists, gynecologist, pediatricians, registered medical practitioners or any other person from conducting pre-natal diagnostic techniques at any place other than a place registered under the Act. This has been challenged as tests are conducted in mobile clinics. Analytically speaking the legislative intent and object is prohibitory in nature namely it prohibits what can be said to be determination and then selecting and then disclosing so that fetus may be eliminated or thrive. The clinics should keep proper records for a period of minimum two years if any litigation is there.
The Supreme Court in several and significant public interest litigations, namely, Centre for Enquiry into Health and Allied Themes (CEHAT) v. Union of India; referred as (Cehat v. Union of India)[7] where several directions are given, namely, directing proper and effective implementation of the Act. The Supreme Court directed reviewing the working and implementing the rules framed under the Act directed creating public awareness for stopping the evil practice of sex selection in 2003, further directions were given as the court found there was no change in human mindset. The Court also took note of misuse of modern technology. and litigation by public spirited Sabu Mathew George v. Union of India[8] spanning from 2008 till 2017 December, where by directions are given to search engines to block such advertisement which are meant for diagnostic help of female fetus, way back on 19-9-2016, the Supreme Court directed the respondents to develop techniques so that there would be auto-blocking of such private advertisement. Critically analysing the said decision in opinion of this author there is no conflict in these orders with the decision in Shreya Singhal v. Union of India[9] where right of intermediary is discussed. The decision nowhere directs legitimate information to be blocked or auto-blocked. The nodal agencies directed to be appointed pursuant to 16-11-2016 order cannot be said to be against the rules under the IT Act, 2000 but are in addition as the agency has to only intimate the request to the search engine, the censorship is not violative of any fundamental right of individual. The term advertisement which is undefined is properly interpreted by the court and has come to the conclusion that search engines will have to adopt or adapt and develop such techniques which will filter such information, the safeguarding of freedom to expression is also addressed. A flaw in the decision is that it does not advert to the aspect of pre decisional hearing. It can be observed that the litigation started in 2008 and relates to an important development after the IT Act, 2000 came into force and development in cyber world. The litigation is for seeking ban on so-called advertisements which can be said to be impinging the provisions of the Act. The court issued several directions on 13-12-2017 while disposing the said petition reader may refer to Sabu Mathew George v. Union of India[10]. The court has not distinguished organic search results and advertisements in popular sense is argued by many who are for internet freedom and not concerned with social legal problem caused by such so called organic research advertisements (emphasis by author). The reader can scan through the full text in chronological order in SCC of the year concerned.
The Supreme Court in Voluntary Health Association of Punjab v. Union of India[11] considered the effective implementation of the Act and divided States into clusters so as to consider the suggestions of all stakeholders. The court directed that training be imparted to prosecution officials.
As discussed, the study in post-2010 has turned to what can be said to be mix blend of offences concerning modern technology and medical profession. The diagnostic tool to monitor pregnancy has been subject of disputes concerning ultrasound machines and for stopping indiscreet use of such gadgets as also guidelines for use of all such instruments and for tests to be conducted. The criminality of the act must be seen where there were no proof of earlier indulging in such act as at times there may be genuine reasons for a family to go for testing.
A reference to the Supreme Court’s decision in State of Orrisa v. Mamata Sahoo[12] where there was challenge to applicability of Section 28 of the Act on the ground that criminal proceedings were wrongly quashed by the High Court as it held that inspection was not by competent authority, the Supreme Court held that the District Magistrate was authorised and was competent to send his nominee. The criminal proceeding for breach of Section 282 of the Act have been restored, this decision shows the proactive rather purposing interpretation clause being employed by the court to see that the purpose of the Act was not defeated.
The higher courts of the country have paved way for seeing that the PNDT Act is implemented more vigorously and its punishment powers are enhanced. However, this has led to unrest in doctor community as there is also misuse of the powers vested a recent decision of the Chhattisgarh High Court and the Gujarat High Court show that where there is gross misuse of power, the courts have safeguarded the interest of doctors refer to Dr. Amritlal Rohledar v. State of Chhattisgarh [13] and that of the Gujarat High Court in Mehul Acharya (supra).
In Suo Motu v. State of Gujarat[14] the following questions came up for consideration:
“(i) Whether under the provisions of Section 28 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, a court can take cognizance of an offence under the Act on a complaint made by any officer authorised in this behalf by the appropriate authority?
(ii) Whether the provisions of the proviso to sub-section (3) of Section 4 of the PNDT Act require that the complaint should contain specific allegations regarding the contravention of the provisions of Sections 5 and 6 of the Act?
(iii) Whether the burden lies on the authority to prove that there was contravention of the provisions of Section 5 or 6 of the PNDT Act?
(iv) Whether any deficiency of inaccuracy in filing Form F as required under the statutory provisions is merely a procedural lapse?”
Upon above analysis and appreciation of the scheme and provisions of the Act and Rules made thereunder, opinion on issues referred to the larger bench is as under:
“(i) Under the provisions of Section 28 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (the PNDT Act), a Court can take cognizance of an offence under the Act on a complaint made by any officer authorised in that behalf by the appropriate authority.
(ii) The proviso to sub-section (3) of Section 4 of the PNDT Act does not require that the complaint alleging inaccuracy or deficiency in maintaining record in the prescribed manner should also contain allegation of contravention of the provisions of Section 5 or 6 of the PNDT Act.
(iii) In a case based upon allegation of deficiency or inaccuracy in maintenance of record in the prescribed manner as required under sub-section (3) of Section 4 of the PNDT Act, the burden to prove that there was contravention of the provisions of Section 5 or 6 does not lie upon the prosecution.
(iv) Deficiency or inaccuracy in filling Form F prescribed under Rule 9 of the Rules made under the PNDT Act, being a deficiency or inaccuracy in keeping record in the prescribed manner, it is not a procedural lapse but an independent offence amounting to contravention of the provisions of Section 5 or 6 of the PNDT Act and has to be treated and tried accordingly. It does not, however, mean that each inaccuracy or deficiency in maintaining the requisite record may be as serious as violation of the provisions of Section 5 or 6 of the Act and the Court would be justified, while imposing punishment upon conviction, in taking a lenient view in cases of only technical, formal or insignificant lapses in filling up the forms. For example, not maintaining the records of conducting ultra-sonography on a pregnant woman at all or filling up incorrect particulars may be taken in all seriousness as if the provisions of Section 5 or 6 were violated, but incomplete details of the full name and address of the pregnant woman may be treated leniently if her identity and address were otherwise mentioned in a manner sufficient to identify and trace her.
(v) The judgment in Dr. Manish C. Dave v. State of Gujarat, 2007 SCC Online Guj 25: (2008) 1 GLH 475, stands overruled to the extent it is inconsistent with the above opinion. The references stand disposed accordingly.”
The medical fraternity has felt aggrieved as for trivial breach their licenses are canceled, they are subjected to face criminal prosecutions as there are no slabs fixed for trivial or deficiency in keeping records punishment for such must be commensurate with the fault or so-called offence.
The health ministry issued a Notification on 4-4-2020 which came for criticism by the group who opposes the said Notification. Later on, the government has come up with a reply that there is no suspension of application of the PC and PNDT Act but only due to certain pandemic situation the notification was issued to differ/suspend certain provisions. The government has not exempted from compliance to the provisions of the PC and PNDT Act. It was clarified that all records were mandatory. This shows that both the government and the Supreme Court have shown that there must be strict compliance of PNDT Act. Despite that we see that there are several issues which come up before the Supreme Court recently. Drishti has requested the government to revoke the order reckoning the PC and PNDT Acts softening.
AIDWA objected to the suspending of Rule 8, Rule 9 (8) and Rule 18-A(c)(6) of the Act which deal with the process or renewal registration of gynaetic and ultrasound clinics. It appears to the author that AIDWA has not understood the difficulties of the doctors who are serving the nation as warriors and they or on hyper technical stand which they have till date taken.
On March 7th, February 2020, the Deputy Chief Minister and Minister for Higher Education and Technology requested the radiologists to come out with a practical solution to the problem being faced by scanning centers which is placed by the Act. This shows that may be because of this, the April Notification was issued so as to see that doctors do not suffer due to hyper technicalities. The author feels that it is a welcome aspect. The attempt to curb female foeticide and the implementation of Act to some extent has cause difficulties to doctors. However, there are competing interests which are also required to be protected as there may be some unintended consequences and which is causing problems to the doctors as seen in Mehul Acharya (supra) of High Court of Gujarat.
The attitude and practices against female foeticide can be eradicated from the society by strict implementation of the legislation though in certain cases it would be necessary for the family to get themselves checked up which may be for the benefit of the family itself.
Recently, the Notification of 4-4-2020 was challenged by Sabu Mathew George but the Supreme Court refused to stay the said Notification as it was for limited purpose.
In June 2020 again the Centre has clarified that they have not suspended the PNDT Act. The author refrains from any comments as the matter is sub-judice before the Supreme Court.
The analysis of the decisions cited and the perspective on the PC and PNDT Act would go to show that pre-natal sex determination has been considered to be offensive and the Courts have given strict interpretation of the Act. The Act stand amended time and again so as to meet the challenges faced due to the new technologies coming into force. The PC and PNDT Act was also amended in 2017 and 2018. The Radiologists, just before the pandemic gave e-model for PNDT where forms can be filled online so as to eliminate clerical errors and cut short the harassment. These solutions will also have to be done as the doctors are facing what can be said to be a predicament as to whether to have a radiological machine or face the difficulties. Medical undergraduates are also now scared as the Act has been slightly stringent towards doctors. The Supreme Court recently has been strict with the implementation of PNDT Act and even the Cyber Act and directed the portals to not advertise what can be said to be in violation of PNDT Act. These orders were passed way back in the year 2017 which shows the commitment of the government and the Supreme Court to see that females get what is known as gender justice. The gender bias reading of the Supreme Court is alleged by the doctors but the same is not so. The provisions of Section 23 have been held to be intra vires and the purposing interpretation has been given by the Supreme Court recently. Though some doctors have made statements about not auto-blocking online expressions but these are not in good taste neither are the directions according to the author in any way in conflict with Shreya Singhal Case (Supra).
To buttress the above the readers may refer to the full text of the following decisions which will satisfy the reader that still there are thin margins which require courts attention to strike a balance between genuine need of gender check or rather pre-birth child growth. Refer Vinod Singh Chauhan v. State of U.P.[15], Guru Govekar v. Filomena F. Lobo[16] , CEHAT v. Union of India (supra), Hemanta Rath v. Union of India[17], Voluntary Health Association of Punjab v. Union of India (supra), Vinod Soni v. Union of India[18], Vijay Sharma v. Union of India[19], Malpani Infertility Clinic Pvt. Ltd. v. Appropriate Authority, Pndt Act[20], Dr. Varsha Gautam v. State of U.P.[21], Qualified Private Medical Practitioners and Hospitals Association v. State of Kerala[22], Chitra Agrawal v. State of Uttaranchal[23], Dr. Devendra Bohra v. State of Haryana[24], Dr. Preetinder Kaur v. The State of Punjab[25], Suo Moto v. State of Gujarat (supra), Suhasini Umesh Karanjakar v. Kolhapur Municipal Corp[26], Radiological & Imaging Association v. Union of India (supra), Dr. Kalpesh J. Patel v. State of Gujarat (supra).
Suggestions
As long as there is fascination for male child and phobia for female child and girl child is irrationally perceived as a burden, people will resort to any means for eliminating the female fetus while systematically selecting the male fetus. Social malaise of such a staggering magnitude cannot be remedied only through legislation and court cases. It is true that technology is aiding systematic elimination of girl child; still technology does not exist in a vacuum. Social evil inevitably influences its use. The PNDT Act and its strict implementation undoubtedly is a step in the right direction for preventing the killing of unborn girls. The grave crime of female fetus being done away also needs to be noticed in holistic perspective of gender injustice. Rabidly followed unequal treatment meted out to women, perpetration of violence, lack of education and denial of economic opportunities, total stifling of their voice even in such intimate and integral matter as raising their own family, displays firmly imbedded patriarchal mindset. Howsoever, multi-faceted evil though it is still having to be met by a sustained campaign on all fronts. There may be possible road-blocks and dead-ends. They have to be acknowledged and identified and addressed. Professional bodies like the Indian Medical Association (IMA) also must not remain a passive spectator to the brutality and greed of the members of medical profession in such acts and derogatory practices. Even in matters where doctors are not directly involved, in case if they have definite information, their vigilance in reporting such acts to competent authority certainly can help; for non-reporting would mean joining in the conspiracy of silence, if the PNDT Act has to be a transformative force, emphasis also has to be laid on sufficient education, lobbying, publicity and commitment to saving female fetuses; unborn daughters so that their Right to Life is recognised and asserted. What is ultimately needed is the development of innovative strategy of engaging with law as means of mobilization and resistance.
Conclusion
As can be seen the object and the purpose of the PNDT Act has been given what can be said to be a strict interpretation. The medical practitioner should not be penalised for clerical errors in record keeping have held to be not tenable. This in view of the author is too harsh as if it is a venial breach it can be placed under the terms of what can be said to be minor fault and suitable amendment as done in the NDPS Act for minor offences should be incorporated in the Act. The Supreme Court and the High Courts have interpreted the term “Appropriate Authority” so that hyper technical stand taken by the people are not permitted to defeat the legislative intent. The abortion norms and infanticide prohibition can be seen. The Rules are for the time being suspended due to the onslaught of Covid. The decisions taken for analysis would show that the Courts have been very strict in interpreting the provisions of the Act. The Supreme Court and the High Courts have also interpreted and upheld the provisions to be constitutionally valid. However, certain medical terminations have been permitted looking to the Medical Termination of Pregnancy Regulations, 2003. The Supreme Court has given direction to all the States and UTs for strict compliance of the decision and directions in Voluntary Health Association (Supra) and has come heavily on the High Courts which give contrary decisions. This happened recently while staying the directions of the Delhi High Court in Union of India v. Indian Radiological and Imagining Association[27]. The Supreme Court and the High Courts have given certain directions to search engines in Sabu Mathew George (Supra) and have directed the government to appoint nodal agencies and also held that the Rules of 2014 are neither ultra vires the Act nor do they suffer from arbitrariness just because it prescribes training for radiological purposes.
In the end, it can be seen that the medical and health law qua safeguarding the female fetus has brought about some changes but the medical fraternity requires to be protected at the same time that these venial offences and for that the author feels that right to run clinic, hospital and nursing homes with all these are regulations which are in tune with duties of doctors and medical ethics requires to be properly looked into as doctors owe constitutional duty to treat the have-nots but at the same time cannot run clinics so as to diagnose and do away with the fetus if it is found to be girl child. India does not permit euthanasia which indirectly the doctors may be conducting.
† Judge, Allahabad High Court
[1] Article on Domestic Violence Act, refer here: https://www.scconline.com/blog/post/2021/01/29/reflection-on-domestic-violence-act-2005-and-role-of-judiciary-for-balancing-the-rights-of-women/
[4] Compilation and analysis of case-law on Pre-conception and Pre-natal Diagnostics Techniques (Prohibition of Sex Selection Act, 1984) by Dr. Shalini Phansalkar Joshi, Maharashtra Judicial Academy, Chapter I p. 1.
[5] Published, dated 26-7-1994 being Tenth Series Vol. XXXIII Eleventh Session
[13] (2019) SCC Online Chh 137
[14] (2008) SCC OnLine Guj 294