Holding

The provisions of the PC&PNDT Act, including sections 23(1), 23(2), the mandatory record‑keeping via Form F, and the powers of search, seizure and suspension, are constitutionally valid as they are essential to prevent female foeticide and do not infringe Articles 14, 19(1)(g) or 21.

Summary

The Federation of Obstetrics and Gynecological Societies of India (FOGSI) challenged the constitutional validity of sections 23(1) and 23(2) of the Pre‑conception and Pre‑natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, arguing that the provisions presumed guilt and violated Articles 14, 19(1)(g) and 21. The Court examined the role of Form ‘F’, record‑keeping requirements, the power to seize and seal equipment, and the suspension of registration under section 23(2). It held that the provisions are integral to the Act’s purpose of preventing female foeticide, that Form ‘F’ is a condition precedent, not a mere clerical form, and that the seizure, sealing and suspension powers are reasonable restrictions. Consequently, the petition was dismissed and the challenged provisions were upheld.

Issues considered

The constitutional validity of section 23(1) of the PC&PNDT Act under Articles 14, 19(1)(g) and 21
The constitutional validity of section 23(2) of the PC&PNDT Act, particularly the suspension of a medical practitioner's registration before conviction
The requirement of complete and accurate information in Form ‘F’ and whether clerical errors can be treated as offences
Whether the proviso to section 4(3) should be read down or struck down
The legality of seizure and sealing of ultrasound machines under section 30 and the Rules
The adequacy of safeguards and procedural safeguards under the Act

Legislation cited

Constitution of Indias. Article 14, s. Article 19(1)(g), s. Article 21, s. Article 51A(e)
Indian Evidence Act, 1872s. 106, s. 24
Indian Medical Council Act, 1956s. Regulation 1.3, s. Regulation 7.1, s. Regulation 7.2, s. Regulation 7.6, s. Regulation 8
Medical Termination of Pregnancy Act, 1971s. 5, s. 6
Pharmacy Practice Regulation, 2015s. 6.2
Pre‑conception and Pre‑natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994s. 16A, s. 17, s. 18, s. 20, s. 21, s. 23(1), s. 23(2), s. 27, s. 28, s. 29, s. 3, s. 30, s. 31, s. 32, s. 33, s. 34, s. 3A, s. 3B, s. 4(3), s. 5, s. 6
Transplantation of Human Organs and Tissues Act, 1994s. 20

Subjects

female foeticidePC&PNDT Actconstitutional validityrecord keepingForm Fsex selectionmedical regulationseizure and sealingsuspension of registrationfundamental rights

Judgment

12 [2019]
SUPREME COURT 7 S.C.R. 12
REPORTS [2019] 7 S.C.R.

A FEDERATION OF OBSTETRICS AND GYNECOLOGICAL
SOCIETIES OF INDIA (FOGSI)
v.
UNION OF INDIA AND OTHERS
B (Writ Petition (Civil) No.129 of 2017)
MAY 03, 2019
[ARUN MISHRA AND VINEET SARAN, JJ.]
Pre-conception and Pre-natal Diagnostic Techniques
(Prohibition of Sex Selection) Act, 1994 – ss.23(1) and 23(2) –
C
Constitutional validity of – The petitioner-Society contended that s.
23(2) of the Act is ultra-vires the Constitution as it assumes the guilt
of the alleged accused even before his/her conviction by a competent
court and hence violates the fundamental right guaranteed u/Art.21
of the Constitution – Held: s.23 is not a stand alone section – It is
D rather used in the enforcement of other provisions of the Act and
violations of s.23 are often accompanied by violations of provisions
of ss.4, 5, 6 and 18 of the Act – It provides for punishment for any
medical geneticist, gynecologist, registered medical practitioner or
a person who owns a Genetic Counselling Centre, a Genetic clinic
or a Genetic Laboratory, and renders his professional or technical
E
services to or at said place, whether on honorarium basis or
otherwise and contravenes any provisions of the Act, or the Rules
under it – Therefore, dilution of the provision of the Act would only
defeat the purpose of the Act to prevent female foeticide and relegate
the right to life of the girl child u/Art.21 of the Constitution, to a
F mere formality – Thus, no case made out for striking down the
provisions of ss.23(1) and 23(2).
Pre-conception and Pre-natal Diagnostic Techniques
(Prohibition of Sex Selection) Act, 1994 – Pre-conception and Pre-
natal Diagnostic Techniques (Prohibition of Sex Selection) Rules,
G 1996 – Indian Medical Council Act, 1956 – Indian Medical Council
(Professional conduct, Etiquette and Ethics) Regulations, 2002 –
Petitioner-society sought direction in the nature of certiorari/
mandamus for decriminalising anomalies in paperwork like
incomplete ‘F’ forms/clerical mistakes/record keeping in regard of
H
12
FEDERATION OF OBSTETRICS AND GYNECOLOGICAL 13
SOCIETIES OF INDIA v. UNION OF INDIA

the provisions of the Act for being violative of Arts. 14, 19(1)(g) A
and 21 of the Constitution – Held: Though Form ‘F’ is a clerical
requirement, but if any information in the form is avoided, it will
result in the blantant violation of the provisions of s.4 of the Act,
1994 and may lead to a result which is prohibited u/s. 6 of the Act,
1994 – It cannot be said to be a case of clerical error as doctor has
B
to fulfil pre-requisites for undertaking the procedure in case the
conditions precedent for undertaking pre-natal diagnostic test is
not specifically mentioned, it would be violative of provisions
contained in s.4 – In case the indications and the information are
not furnished as provided in the Form ‘F’ it would amount that
condition precedent to undertake the test/procedure is absent – There C
is no other barometer except form ‘F’ to find out why the diagnostic
test/procedure was performed – Form ‘F’ lays down the indicative
list for conducting ultra-sonography during pregnancy – Further,
Form ‘F’ being technical in nature gives the insight into the reasons
for conducting ultra-sonography and incomplete Form ‘F’ raises
D
the presumption of doubt against medical practitioner – Insofar as
maintaining of record is concerned, they have to maintained only
when the procedure or tests are conducted on pregnant woman or
when patient may have been advised to use pre-conception
diagnostic tools to conceive a child – The scheme of the Act makes
it evident that record keeping is meant to track/monitor and regulate E
the use of technology that has potential of sex selection and sex
determination – As the entries are mandatory and sine qua non for
undertaking a test/procedure, the assertion that their fundamental
rights are being violated by not providing requisite information is
not germane and is without substance.
F
Pre-conception and Pre-natal Diagnostic Techniques
(Prohibition of Sex Selection) Act, 1994 – Proviso to s.4(3) –
Petitioner-society contended that s.4(3) should be read down – Held:
By virtue of the proviso to s. 4(3), a person conducting
ultrasonography on a pregnant woman, is required to keep complete
record of the same in the prescribed manner and any deficiency or G
inaccuracy in the same amounts to contravention of s.5 or s.6 of
the Act, unless the contrary is proved by the person conducting the
said ultrasonography – The aforementioned proviso to s.4(3) reflects
the importance of records in such cases, as they are often the only
H
14 SUPREME COURT REPORTS [2019] 7 S.C.R.

A source to ensure that an establishment is not engaged in sex-
determination – Thus, there is no substance in the contention that
provision of s.4(3) be read down.
Pre-conception and Pre-natal Diagnostic Techniques
(Prohibition of Sex Selection) Act, 1994 – s.30 – Pre-conception
B and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection)
Rules, 1996 – rr.11 and 12 – Indian Medical Council (Professional
conduct, Etiquette and Ethics) Regulations, 2002 – Petitioner-society
contended that the action of seizure of ultra-sonography machine
and sealing the premises by the competent authority cannot be said
to be appropriate – Held: s. 30 of the Act enumerates the power of
C search and seizure and rr. 11 & 12 of the Rules provide for the
power of the Appropriate Authority to seal equipment, inspect
premises and conduct search and seizure – It is settled proposition
that when offence is found to be committed, there can be seizure
and sealing of the premises and equipment during trial as no license
D can be given to go on committing the offence – Such provisions of
seizure/sealing, pending trial are to be found invariably in various
penal legislations – The impugned provisions contained in the Act
constitute reasonable restrictions to carry on any profession which
cannot be said to be violative of Right to Equality enshrined u/Art.
14 or right to practise any profession u/Art. 19(1)(g) – Considering
E the Fundamental Duties u/Art. 51A(e) and considering that female
foeticide is most inhumane act and results in reduction in sex ratio,
such provisions cannot be said to be illegal and arbitrary in any
manner besides there are various safeguards provided in the Act to
prevent arbitrary actions – Thus, contention of the petitioner
F rejected – Constitution of India – Arts.19(1)(g), 14, 51A(e).
Dismissing the writ petition, the Court
HELD : 1. When the Form ‘F’ is scrutinised with the
provisions of the Pre-conception and Pre-natal Diagnostic
Techniques (Prohibition of Sex Selection) Act, 1994/Pre-
G conception and Pre-natal Diagnostic Techniques (Prohibition of
Sex Selection) Rules, 1996 and there cannot be any dispute with
respect to serial Nos.1 and 2 wherein name and address of
Genetic Laboratory and its registration number is required to be
mentioned in the Form as it is necessary to have a registration
H under Section 18 of the Act. It cannot be said to be a clerical
FEDERATION OF OBSTETRICS AND GYNECOLOGICAL 15
SOCIETIES OF INDIA v. UNION OF INDIA

requirement. Patient name and her age at serial No.3 is also A
absolutely necessary so as to identify a person who is undergoing
the test and before the age of 35 years, it cannot be conducted as
provided under Section 4(3)(i). The same is as per the mandatory
requirement of Section 4. Husband’s/father’s name is also
necessary as per the statutory mandate for the purpose of
B
identification of patient. Full address is also mandatory so as to
ascertain the identity who is undergoing such test. In case these
information are kept vague, the violation of the Act would be
blatant and unchecked and offence can never be detected.
Information at serial No.8 of the Form ‘F’ requires last menstrual
period/weeks of pregnancy to be mentioned, same is also C
necessary to be mentioned as it has co-relation with the
investigations and provisions of the Act and the rules framed
thereunder. The column in Form at serial No.9 requires history
of genetic/medical disease in the family to be specified which is
as per the mandate of Section 4(3)(iv) of the Act. Form ‘F’ at
D
serial No.10 requires indication for pre-natal diagnosis which is
mandatory as per the provisions contained in Section 4(2) as
except for the purposes as mentioned in Sections 4(2) and 4(3)
no such tests/procedures can be performed. Thus, what is
mandated by the Sections and in Rule 9 has been mentioned in
the Form ‘F’. Procedure carried whether invasive or non-invasive E
has to be obviously mentioned and in case any laboratory tests
have been recommended that is to be mentioned along with the
result. The note attached to Form ‘F’ also contains the
representative list of indications when ultrasound during
pregnancy can be performed. Thus, though the submission that
F
Form ‘F’ is clerical requirement urged by the petitioner-Society
appears at the first blush to be worthy examination, but on close
scrutiny it is found that in case any information in the Form is
avoided, it will result in the blatant violation of the provisions of
Section 4 and may lead to result which is prohibited under Section
6. It cannot be said to be a case of clerical error as doctor has to G
fulfil pre-requisites for undertaking the procedure in case the
conditions precedent for undertaking pre-natal diagnostic test is
not specifically mentioned, it would be violative of provisions
contained in Section 4. The Form ‘F’ has to be prepared and
H
16 SUPREME COURT REPORTS [2019] 7 S.C.R.

A signed by either Gynaecologist/Medical Geneticist / Radiologist
/ Paediatrician / Director of the Clinic/Centre/Laboratory. In case
the indications and the information are not furnished as provided
in the Form ‘F’ it would amount that condition precedent to
undertake the test/procedure is absent. There is no other
barometer except Form ‘F’ to find out why the diagnostic test/
B
procedure was performed. In case such an important information
beside others is kept vague or missing from the Form, it would
defeat the very purpose of the Act and the safeguards provided
thereunder and it would become impossible to check violation of
provisions of the Act. It is not the clerical job to fill the form, it is
C condition precedent for undertaking test/procedure. With all due
regards to the submission advanced on behalf of petitioner-
Society that it is a clerical job, is wholly without substance but it
is a responsible job of the person who is undertaking such a test
i.e., the Gynaecologist/ Medical Geneticist/Radiologist/
Paediatrician/Director of the Clinic/Centre/Laboratory to fill the
D
requisite information. In case he keeps it vague, he knows fully
well that he is violating the provisions of the Act and undertaking
the test without existence of the conditions precedent which are
mandatory to exist he cannot undertake test/procedure without
filling such information in the form. There is no other way to
E ensure that test is undertaken on fulfilment of the prescribed
conditions. There is nothing else but the record which required
to be maintained and on the basis of which counter-check can be
made. There is no other barometer or criteria to find out the
violation of the provisions of the Act. Rule 9(4) also requires
that every Genetic Clinic to fill Form ‘F’ wherein information
F
with regard to details of the patient, referral notes with indication
and case papers of the patient are required to be filled and
preserved. Form ‘F’ lays down the indicative list for conducting
ultrasonography during pregnancy. Form ‘F’ being technical in
nature gives the insight into the reasons for conducting
G ultrasonography and incomplete Form ‘F’ raises the presumption
of doubt against the medical practitioner. In the absence of Form
‘F’, Appropriate Authorities will have no tool to supervise the
usage of ultrasound machine and shall not be able to regulate the
use of the technique which is the object of the Act. [Para 59]
[63-A-H; 64-A-H]
H
FEDERATION OF OBSTETRICS AND GYNECOLOGICAL 17
SOCIETIES OF INDIA v. UNION OF INDIA

2. It is rightly contended on behalf of respondents that there A
are different forms for record keeping prescribed under the Act
and the Rules they are important and interlinked, operate in
tandem with one another. These records have to be maintained
only when the procedure or tests are conducted on pregnant
woman or when patient may have been advised to use pre-
B
conception diagnostic tools to conceive a child. It is required for
Genetic Counselling Centre advising the procedure/test with a
potential of detecting or determining the sex of the foetus and
referring a person to a Genetic Clinic/Imaging Centre/Ultrasound
Clinic to record the details of Genetic Clinic to which patient is
referred at point 15 of the Form ‘D’ along with the details of the C
diagnosis and relevant medical details of the person. Accordingly,
Genetic Clinic/Imaging Centre/Ultrasound Clinic conducting the
aforesaid referred procedure has to record the name and address
of Genetic Counselling Centre with the referral slip along with
the relevant medical record of the person on whom procedure/
D
test/technique is conducted. The aforesaid record keeping
procedure shall be followed by Genetic Laboratories also. The
scheme of the Act makes it evident that record keeping is meant
to track/monitor and regulate the use of technology that has
potential of sex selection and sex determination. Section 23 is
not stand-alone Section. It is rather used in the enforcement of E
other provisions of the Act and violations of Section 23 are often
accompanied by violations of provisions of Sections 4, 5, 6 and
18 of the Act. It is submitted that non-maintenance of record in
the context of sex determination is not merely a technical or
procedural lapse. It is most significant piece of evidence for
F
identifying offence and the accused. The inspection of records is
crucial to identify wrong-doers as the crime of sex determination
being a collusive crime given the nexus between the patients
and the doctors. Accordingly, punishment is provided in Section
23 for not maintaining the records. [Para 60] [65-A-F]
3. In R. Sai Bharathi v. J. Jayalalitha it has been observed G
that crime is against social order, immoral and harmful act. It has
also been observed by this Court that legislature can have a law
to constitute an act or omission done by a person against the
other as a crime. Considering the evils sought to be remedied it
H
18 SUPREME COURT REPORTS [2019] 7 S.C.R.

A cannot be said that the imposition in the Act in question is
disproportionate. The restrictions and the provisions of
punishment have close nexus with the object sought to be
achieved. It is not possible to term action as merely clerical one
as that is pre-requisite for the test/procedure and that is what is
intended by the Act, if it is given a go-bye under the guise of
B
clerical error, the Act would be rendered otiose. Restriction
cannot be said to be excessive and beyond what is required in
the public interest, they cater to the felt need of the society and
the complex issues facing people which the legislature intends
to solve. [Para 77] [84-D-F]
C 4. It is apparent from the aforesaid discussion in Shreya
Singhal v. Union of India, in a case where no reasonable standards
are laid down to define guilt in a section which creates an offence,
it would be arbitrary and unconstitutional. It is absolutely clear
that the provisions in the Act in question cannot be termed as
D arbitrary or illegal or unreasonable. The provisions are not vague.
A responsible doctor is supposed to know before undertaking
such pre-natal diagnostic test etc. what is he undertaking and
what his responsibilities are. If he cannot understand the form
he is required to fill and the impact of medical findings and its
consequences which is virtually the pre-requisite for undertaking
E a test, he is not fit to be a member of a noble medical profession.
Such culpable negligence is not warranted from a doctor. It is
crystal clear from the provisions of the Act which can be gathered
by a person of ordinary intelligence and they can have fair notice
of what is prohibited and what omission they should not make.
F The principles deliberated upon in Shreya Singhal case rather
supports the constitutionality of the Act and the Rules framed
thereunder. Considering the compelling general public interest
and gender justice and declining sex ratio, there is no hesitation
in upholding the validity of the provisions of Section 23(1) of the
Act. [Paras 78 and 79] [86-C-F; 88-F]
G
5. The Act is a social welfare legislation, which was
conceived in light of the skewed sex-ratio of India and to avoid
the consequences of the same. A skewed sex-ratio is likely to
lead to greater incidences of violence against women and increase

H
FEDERATION OF OBSTETRICS AND GYNECOLOGICAL 19
SOCIETIES OF INDIA v. UNION OF INDIA

in practices of trafficking, ‘bride-buying’ etc. The rigorous A
implementation of the Act is an edifice on which rests the task of
saving the girl child. [Para 85] [90-E-F]
6. In the opinion of this Court, no case is made out to hold
that deficiency in maintaining the record mandated by Sections
5, 6 and the proviso to Section 4(3) cannot be diluted as the B
aforesaid provisions have been incorporated in various columns
of the Form ‘F’ and as already held that it would not be a case
clerical mistake but absence of sine qua non for undertaking a
diagnostic test/procedure. It cannot be said to be a case of clerical
or technical lapse. Section 23(1) need not have provided for
gradation of offence once offence is of non-maintenance of the C
record, maintenance of which itself intend to prevent female
foeticide. It need not have graded offence any further difference
is so blur it would not be possible to prevent crime. There need
not have been any gradation of offence on the basis of actual
determination of sex and non-maintenance of record as D
undertaking the test without the pre-requisites is totally
prohibited under the Act. The non-maintenance of record is very
foundation of offence. For first and second offences, gradation
has been made which is quite reasonable. [Para 86] [90-G-H;
91-A-B]
E
7. It was also contended that action of seizure of
ultrasonography machine and sealing the premises cannot be said
to be appropriate. The submission is too tenuous and liable to
be rejected. Section 30 of the Act enumerates the power of search
and seizure and Rules 11 and 12 of the Rules provide for the
power of the Appropriate Authority to seal equipment, inspect F
premises and conduct search and seizure. It was pointed out by
the respondents that a “Standard Operational Procedure”,
detailing the procedure for search and seizure has been developed
by the Ministry of Health and Family Welfare. Further, regular
training of Appropriate Authorities is being carried out at both G
the National and State level. All the States have also been directed
to develop online MIS for monitoring the implementation of the
Act. It is settled proposition that when offence is found to be
committed, there can be seizure and sealing of the premises and
equipment during trial as no license can be given to go on
H
20 SUPREME COURT REPORTS [2019] 7 S.C.R.

A committing the offence. Such provisions of seizure/sealing,
pending trial are to be found invariably in various penal
legislations. The impugned provisions contained in the Act
constitute reasonable restrictions to carry on any profession which
cannot be said to be violative of Right to Equality enshrined under
Article 14 or right to practise any profession under Article
B
19(1)(g). Considering the Fundamental Duties under Article
51A(e) and considering that female foeticide is most inhumane
act and results in reduction in sex ratio, such provisions cannot
be said to be illegal and arbitrary in any manner besides there
are various safeguards provided in the Act to prevent arbitrary
C actions. [Para 90] [92-A-E]
8. Non maintenance of record is spring board for commission
of offence of foeticide, not just a clerical error. In order to
effectively implement the various provisions of the Act, the
detailed forms in which records have to be maintained have been
D provided for by the Rules. These Rules are necessary for the
implementation of the Act and improper maintenance of such
record amounts to violation of provisions of Sections 5 and 6 of
the Act, by virtue of proviso to Section 4(3) of the Act. In addition,
any breach of the provisions of the Act or its Rules would attract
cancellation or suspension of registration of Genetic Counselling
E Centre, Genetic Laboratory or Genetic Clinic, by the Appropriate
Authority as provided under Section 20 of the Act. [Para 92]
[92-H; 93-A-B]
9. There is no substance in the submission that provision
of Section 4(3) be read down. By virtue of the proviso to Section
F 4(3), a person conducting ultrasonography on a pregnant woman,
is required to keep complete record of the same in the prescribed
manner and any deficiency or inaccuracy in the same amounts to
contravention of Section 5 or Section 6 of the Act, unless the
contrary is proved by the person conducting the said
G ultrasonography. The aforementioned proviso to Section 4(3)
reflects the importance of records in such cases, as they are often
the only source to ensure that an establishment is not engaged
in sex-determination. [Para 93] [93-C-D]
10. In light of the nature of offences which necessitated the
H enactment of the Act and the grave consequences that would
FEDERATION OF OBSTETRICS AND GYNECOLOGICAL 21
SOCIETIES OF INDIA v. UNION OF INDIA

ensue otherwise, suspension of registration under Section 23(2) A
of the Act serves as a deterrent. Section 23 of the Act, which
provides for penalties of offences, acts in aid of the other Sections
of the Act is quite reasonable. It provides for punishment for any
medical geneticist, gynecologist, registered medical practitioner
or a person who owns a Genetic Counselling Centre, a Genetic
B
Clinic or a Genetic Laboratory, and renders his professional or
technical services to or at said place, whether on honorarium
basis or otherwise and contravenes any provisions of the Act, or
the Rules under it. [Paras 91 and 94] [92-F; 93-E]
11. Therefore, dilution of the provisions of the Act or the
Rules would only defeat the purpose of the Act to prevent female C
foeticide, and relegate the right to life of the girl child under Article
21 of the Constitution, to a mere formality. [Para 95] [93-F]
Shreya Singhal v. Union of India, (2015) 5 SCC 1 :
[2015] 5 SCR 963 ; R. Sai Bharathi v. J. Jayalalitha,
(2004) 2 SCC 9 : [2003] 6 Suppl. SCR 85 ; Centre for D
Enquiry into Health and Allied Themes (CEHAT) v.
Union of India, (2001) 5 SCC 577 : [2001] 3 SCR
534 ; Voluntary Health Association of Punjab v. Union
of India, (2013) 4 SCC 1 : [2013] 5 SCR 111 ; Namit
Sharma v. Union of India (2013) 1 SCC 745 : [2013] E
13 SCR 1 ; Hamdard Dawakhana v. The Union of India
AIR 1960 SC 554 : [1960] SCR 671 ; Subramanian
Swamy v. Union of India, (2016) 7 SCC 221 : [2016] 3
SCR 865 – relied on.
Suo Motu v. State of Gujarat, (2009) 1 Gujarat Law F
Reporter 64 ; Raj Bokaria v. Medical Council of India
(W.P. (C) No.795 of 2010 in the High Court of Delhi)
– approved.
Arun Bhandari v. State of U.P. (2013) 2 SCC 801 :
[2013] 3 SCR 961 ; Enquiry into Health & Allied G
Themes (CEHAT) v. Union of India, (2003) 8 SCC
398 : [2003] 3 Suppl. SCR 593 ; Uttar Pradesh Power
Corporation Ltd. v. Ayodhya Prasad Mishra (2008) 10
SCC 139 : [2008] 13 SCR 373 ; Voluntary Health
Association of Punjab v. Union of India (2016) 10 SCC
265 : [2016] 8 SCR 192 ; Dr. Subhash Kashinath H
22 SUPREME COURT REPORTS [2019] 7 S.C.R.

A Mahajan v. State of Maharashtra (2018) 6 SCC 454 :
[2018] 4 SCR 877 ; Gian Kaur v. State of Punjab (1996)
2 SCC 648 : [1996] 3 SCR 697 ; Nikesh Tarachand
Shah v. Union of India, (2018) 11 SCC 1 : [2017] 12
SCR 358 ; P. Rathinam v. Union of India (1994) 3 SCC
394 ; State of Uttar Pradesh v. Wasif Haider, (2019) 2
B
SCC 303 – referred to.
Case Law Reference
[2013] 3 SCR 961 referred to Para 8
[2003] 3 Suppl. SCR 593 referred to Para 15
C
[2008] 13 SCR 373 referred to Para 38
[2016] 8 SCR 192 referred to Para 65
[2001] 3 SCR 534 relied on Para 66
[2013] 5 SCR 111 relied on Para 67
D
[2013] 13 SCR 1 relied on Para 69
[1960] SCR 671 relied on Para 71
[2018] 4 SCR 877 referred to Para 75

E [1996] 3 SCR 697 referred to Para 76
[2016] 3 SCR 865 relied on Para 77
[2003] 6 Suppl. SCR 85 relied on Para 77
[2015] 5 SCR 963 relied on Para 78
F [2017] 12 SCR 358 referred to Para 79
(1994) 3 SCC 394 referred to Para 80
(2019) 2 SCC 303 referred to Para 82
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
G 129 of 2017.
(Under Article 32 of the Constitution of India)
Soli J. Sorabjee, Shyam Divan, Sr. Advs., Amit Karkhanis, Kapil
Joshi, Ms. Saloni Sulakhe, Vinayak Bhandari, Ms. Palavi Sharma (for
M/S. Knc), Advs. for the Petitioner.
H
FEDERATION OF OBSTETRICS AND GYNECOLOGICAL 23
SOCIETIES OF INDIA v. UNION OF INDIA [ARUN MISHRA, J.]

Ms. Pinky Anand, ASG, Biswajit Bhattacharya, Sr. Adv., Ms. Vimla A
Sinha, Ms. Snidha Mehra, Ms. Saudamini Sharma, Gurmeet Singh
Makker, Ms. Rashmi Nandakumar, Gaurav Sharma, Dhawal Mohan,
Abhishek, Prateek Bhatia, Prasana Mohan, Advs. for the Respondents.
The Judgment of the Court was delivered by
ARUN MISHRA, J. B

1. The instant writ petition has been filed by the Federation of
Obstetrics and Gynaecological Societies of India (FOGSI) (hereinafter
referred to as ‘the Society’) highlighting the issues and problems affecting
the practice of obstetricians and gynaecologists across the country under
the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of C
Sex Selection) Act, 1994 (hereinafter referred to as ‘the Act’) and
challenging the constitutional validity of Sections 23(1) and 23(2) of the
Act and seeking direction in the nature of certiorari/mandamus for
decriminalising anomalies in paperwork/record keeping/clerical errors
in regard of the provisions of the Act for being violative of Articles 14, D
19(1)(g) and 21 of the Constitution of India. The Society is the apex
body of obstetricians and gynaecologists of the country and is concerned
for the welfare of its members.
2. The case set up on behalf of the petitioner-Society is that the
Act was enacted with the objective to prohibit pre-natal diagnostic E
techniques for determination of sex of the foetus leading to female
foeticide. But unfortunately, its implementation is more in letter and less
in spirit. The problem of sex determination and gender selection is a
serious issue and is one of the biggest social problems faced by our
society. Despite enactment of the Act and subsequent amendments, the
Child Sex Ratio has not shown significant improvement, hence, putting F
sufficient concern and questions on the proper implementation of the
Act. It is contended that equating clerical errors on the same footing
with the actual offence of sex determination shows the inherent weakness
in the language of the Act.
3. It is further contended that the Appropriate Authority appointed G
under the Act conducts inspections and raids in various districts and
cities and even if there are mere anomalies in the paperwork, it seals the
sonography machine and files a criminal case under the Act. As a result,
doctors who do not conduct sex determination and gender selection are
being targeted on the basis of aforesaid anomalies. The inherent infirmity
H
24 SUPREME COURT REPORTS [2019] 7 S.C.R.

A in the Act as it stands currently in its present form amounting to treating
unequals as equals. The Act has failed to distinguish between criminal
offences and the anomalies in paperwork like incomplete ‘F’-Forms,
clerical mistakes such as writing NA or incomplete address, no mentioning
of the date, objectionable pictures of Radha Krishna in sonography room,
incomplete filling of Form ‘F’, indication for sonography not written,
B
faded notice board and not legible, striking out details in the Form ‘F’
etc., thereby charging the members of the petitioner-Society for heinous
crime of female foeticide and sex determination and that too merely for
unintentional mistakes in record keeping. The Act provides same
punishment for the contravention of any provision of the Act, thus equating
C the anomalies in paperwork and the offence of sex determination and
gender selection on the same pedestal. The sealing of machines directly
deprives a woman in that vicinity of a critical medical aid and thereby
putting the lives of the women in danger. The unreasonable sealing of
the sonography machine not only impacts the welfare of the women as
such, but it also amounts to undue harassment and mental torture of the
D
members of the petitioner-Society.
4. It is further contended that the ambiguous wording of Section
23(1) of the Act has resulted in grave miscarriage of justice and the
members of the petitioner-Society have faced grave hardships and have
undergone criminal prosecution for act, which cannot be equated with
E the acts of sex determination.
5. It is averred that even the smallest anomaly in paperwork which
is in fact an inadvertent and unintentional error has made the obstetricians
and gynaecologists vulnerable to the prosecution by the Authorities all
over the country.
F
6. Section 23(2) of the Act empowers the State Medical Council
to suspend the registration of any doctor indefinitely, who is reported by
the Appropriate Authority for necessary action, during the pendency of
trial. The petitioner-Society submitted that Section 23(2) of the Act is
ultra vires the Constitution as it assumes the guilt of the alleged accused
G even before his/her conviction by a competent court and hence violates
the fundamental right guaranteed under Article 21 of the Constitution.
7. It is contended that presumption of innocence is a cardinal
principle of rule of law for which petitioner-Society has placed reliance
on Article 14(2) of the International Covenant on Civil and Political Rights,
H 1966, which states that everyone charged with a criminal offence shall
FEDERATION OF OBSTETRICS AND GYNECOLOGICAL 25
SOCIETIES OF INDIA v. UNION OF INDIA [ARUN MISHRA, J.]

have the right to be presumed innocent until proved guilty according to A
law. Article 14(2) of the International Covenant on Civil and Political
Rights, 1966 reads thus:
“Article 14
1. ***
B
2. Everyone charged with a criminal offence shall have the right
to be presumed innocent until proved guilty according to law.”
8. It is contended that the Act fails to distinguish between the
cases of presence and absence of mens rea during the commission of
minor clerical mistakes. Mens rea is not be presumed at the time of C
taking cognizance and must be established as held by this Court in Arun
Bhandari v. State of U.P., (2013) 2 SCC 801.
9. The petitioner-Society has further placed reliance on the
decisions rendered by this Court in cases of penal statues to give proper
effect to the scheme of the Act concerned and to balance various interests D
involved by striking down/reading down/ diluting the concerned penal
provisions.
10. It is further contended that suspension of the medical licence
at the stage of framing of charges is highly improper and harsh, which
results in loss of livelihood of not only the members of the Society, but
E
also his family as well as the dependents, who are deprived of financial
security and well-being. The vague and ambiguous wordings of Section
23(1) renders Section 25 totally redundant.
11. It is further submitted that Form-F as it stands today does not
serve the purpose for which it was made and there is no substantive
F
evidence which proves that errors in Form-F have any direct nexus with
the offence of sex selection and determination.
12. Respondent Nos.1 to 4 has refuted the claims of the petitioner-
Society altogether. It is contended that the Act is a social welfare
legislation with a social objective to prevent elimination of girls before
birth and it is not a general law providing any general right to practice G
medicine. The specific choice of legislature cannot be called arbitrary
and is in no way ultra vires or violative of the Constitution. The Act is
a Central legislation; however, its implementation lies primarily with the
States, who are required to enforce the law through the statutory bodies
in the State, constituted under the Act. The Act empowers the Central H
26 SUPREME COURT REPORTS [2019] 7 S.C.R.

A Government to regulate the use of pre-natal diagnostic techniques. The
proliferation of the technology is resulting in a catastrophe in the form of
female foeticide leading to severe imbalance in child sex ratio and sex
ratio at birth. The Centre is duty bound to intervene in such a case to
uphold the welfare of the society, especially of the women and the
children. The Act was enacted with a purpose to ban the use of sex
B
selection techniques before or after conception; prevent the misuse of
pre-natal diagnostic techniques for sex selection abortions and to regulate
such techniques. It is mandatory to maintain proper record in respect of
use of ultrasound machines under the Act. For effective implementation
of the Act, a hierarchy of Appropriate Authority at State, District and
C Sub-District level is created.
13. It is contended that ultrasonography test on a pregnant woman
is considered to be an important part of a pre-natal diagnostic test and
the person conducting such test has to maintain a complete record thereof
in the manner prescribed in the rules and a deficiency or inaccuracy in
D maintaining such records would amount to an offence. Chapter VII of
the Act prescribes offences and penalties and there is no gradation of
offences under the Act as it does not classify offences. Equating the
clerical errors on same footing with the actual offence of sex determination
is in compliance with the provisions of the Act and rules thereunder.
The Act does not differentiate among the violations committed by doctors
E and provides for punishment for all violations under the Act. The Act
prescribes punishment in furtherance of its object and purposes which is
to prevent detection of female foetus which is in the larger public interest,
hence Section 23 of the Act does not violate Articles 14 and 21. It is
further averred that right to practice a profession under Article 19(1)(g)
F of the Constitution is not an absolute right.
14. It is contended that petitioner-Society in the garb of social
cause is trying to mislead this Court and a criminal act cannot be protected
under the umbrella of the Article 19. The offences under the Act are
per se criminal and no exemption can be sought for criminal violations in
G the guise of public interest or right to freedom.
15. It is contended that the Appropriate Authority conducts
inspection pursuant to the directions issued by this Court in Centre for
Enquiry into Health & Allied Themes (CEHAT) v. Union of India,
(2003) 8 SCC 398, wherein it was directed to constitute National
H Inspection and Monitoring Committee for conducting inspections. As
FEDERATION OF OBSTETRICS AND GYNECOLOGICAL 27
SOCIETIES OF INDIA v. UNION OF INDIA [ARUN MISHRA, J.]

the sex determination is hatched in secrecy and committed in privacy A
and as both the parties are hand in glove with each other, therefore it
becomes difficult to detect the commission of the offence, hence traps
are usually laid or raids are conducted by the inspecting authorities and
sometimes non-maintenance of records or incomplete records may
provide substantial evidence towards the commission of offence. It is
B
further submitted that the Act specifically provides for the record keeping
under Rule 9 of the Pre-conception and Pre-natal Diagnostic Techniques
(Prohibition of Sex Selection) Rules, 1996 (hereinafter referred to as
‘the Rules’) and any deficiency or inaccuracy in record keeping amounts
to violation of Sections 5 and 6 of the Act.
16. The respondents contend that record keeping is important for C
proper implementation of the Act and the stringent provisions with regard
to maintenance of records and punishment for non-compliance cannot
be equated or considered as infirmity of the Act. If it is exempted from
the mandatory requirement, the probably involvement in sex determination
and sex selection in the guise of use of diagnostic techniques would D
continue unabated.
17. It is also contended that the purpose of Form ‘F’ is to maintain
personal and medical record of the patient visiting the Pre-Natal
Diagnostic Clinic to avail the services and confirmation regarding the
consent of the patient/pregnant woman with regard to the prohibition of E
communication of the sex of foetus so as to avoid abuse of the technology.
Section 4(3) of the Act requires every Genetic Counselling Centre/Genetic
Clinic to fill Form ‘F’. The filling of Form ‘F’ is commensurate with the
objects of the Act which is to regulate the technology and to avoid the
abuse of the technology for the purpose of sex determination. It gives
the insight into the reasons for conducting ultrasonography and incomplete F
Form ‘F’ raises presumption of doubt against the medical practitioner
and in the absence of Form ‘F’, the Appropriate Authority will have no
means to supervise the usage of the ultrasonography machine and shall
not be able to regulate the use of the technique. The non-maintenance
of records is not merely a technical or procedural lapse in the context of G
sex determination, it is the most significant piece of evidence for identifying
the accused. It is further contended that clerical errors in Form ‘F’ fall
under Section 4 of the Act and any deficiency or inaccuracy found therein
shall amount to contravention of the provisions of Section 5 or 6 of the
Act unless contrary is proved by the person conducting such
ultrasonography. H
28 SUPREME COURT REPORTS [2019] 7 S.C.R.

A 18. It is contended that every aggrieved person, who suffered
from any procedural irregularity, can avail legal remedy as provided under
Section 21 of the Act and Rule 19 of the Rules.
19. The respondents have placed reliance on decision rendered
by High Court of Gujarat in Suo Motu v. State of Gujarat, (2009) 1
B GLR 64, which dealt with the issue of proper maintenance of records
and to the decision rendered by High Court of Rajasthan in S.K. Gupta
v. Union of India, wherein it was observed that female infants have
also right to live. There is right of still born child to be looked after
properly during pregnancy. Once a child is conceived, it has to be treated
with dignity. Such right cannot be denied and practice of female foeticide/
C infanticide is prevailing at large which is illegal and unconstitutional.
20. The respondents have also drawn our attention to the provisions
of Regulation 1.3 of the Indian Medical Council (Professional Conduct,
Etiquette and Ethics) Regulations, 2002; Regulation 6.2 of Pharmacy
Practice Regulation, 2015; and Transplantation of Human Organs and
D Tissues Act, 1994, which contains the provisions with respect to
maintenance of proper records.
21. It is submitted that Section 23 and Section 25 are complimentary
to each other, not contradictory as contended by the petitioner-Society.
It is lastly contended that no case for striking down the proviso to Section
E 4(3) is made out.
22. Shri Soli J. Sorabjee and Shri Shyam Divan, learned senior
counsel urged that present is the classic example of unequals being treated
as equals. Due to inherent infirmity in the Act, whereunder members of
the petitioner-Society are treated unequally as mere clerical errors has
F resulted in breach of personal liberties. The Act fails to classify offence
of actual sex determination vis-à-vis clerical error in maintenance of
record. There is no gradation of offence.
23. The presumption of innocence ought not to be disposed away
with under the Act. The same is part of human rights. Presumption of
G innocence continues until conviction. The provisions of suspension under
Section 23(2) is draconian. Any deficiency or inaccuracy in maintenance
of records ought not to amount to contravention under Section 5 or Section
6 and the proviso to Section 4(3) accordingly be diluted. It may be
clarified that contravention of proviso to Section 4(3), Section 29 and
Rule 9 or technical lapses attracting minor penalty should not attract
H
FEDERATION OF OBSTETRICS AND GYNECOLOGICAL 29
SOCIETIES OF INDIA v. UNION OF INDIA [ARUN MISHRA, J.]

Section 27 of the Act. The provision of Section 23(2) be read down so A
that suspension should not fall under Section 23(2) in the case of clerical
mistakes or inadvertent technical errors/lapses. Issuance of notice be
made mandatory under Section 20. No action be taken on technical
grounds such as writing short forms, writing ‘NA’ instead of “not
applicable”, writing initials of the doctors etc. while filing up Form ‘F’.
B
The competent authority should consider each case on merits with the
aid of legal advisor. Denial of renewal of registration of Centre of a
running unit on the ground of pendency of criminal trial is illegal and
harsh. There should not be seizure of any equipment etc. as ultrasound
machine are necessary for human use. It is not appropriate to keep
such utilitarian instruments sealed. C
24. Ms. Pinki Anand, Additional Solicitor General appearing on
behalf of respondents countering the submission raised on behalf of
petitioner-Society contended that there is alarming decline in the child
sex ratio in India and in several districts it is worse as the ratio per
thousand is below 800. She has also relied upon the purpose and legislative D
history of enactment of the Act including amendments made thereunder
and the Rules. It has been made mandatory to maintain proper records
in respect of use of ultrasound machines. The Act provides for prohibition
of sex selection/determination as well as regulation of pre-natal diagnostic
techniques. The rate of conviction is extremely poor, despite 24 years of
the existence of the Act, it is only 586 out of 4202 cases registered, E
resulting into action against 138 medical licenses. Emphasis has been
laid by this Court in several decisions on proper maintenance of records.
Section 23 is the central provision in the scheme of the Act. Form ‘F’ is
very important as it gives the details and the reasons for conducting
ultrasonography and incomplete Form ‘F’ raises the presumption of doubt F
against the medical practitioner. Section 23 and Form ‘F’ are inter-linked,
thus, the provisions cannot be diluted. She further contended that the
non-maintenance of records is not merely procedural lapse, it is key
evidence given the collusive nature of the crime. There exist effective
and efficacious remedies to the instances cited by the petitioner-Society.
She also relied upon a case study on record keeping as an implementation G
tool of Prabhakar Hospital in Panipat. The Act enjoys a presumption of
constitutionality and no case of violation of fundamental rights has been
made out by the petitioner-Society. The Act is regulatory and is for the
wholesome purpose same advances the intendment of other provisions
applicable to medical fraternity, which requires rigorous maintenance of H
30 SUPREME COURT REPORTS [2019] 7 S.C.R.

A records. Considering the wide prevalence of violence against women
and children in different forms, the Legislature has enacted several Acts
in order to ensure gender justice and to take care of cry of female foetus.
No case for striking down, dilution or issuance of any guidelines is made
out by the petitioner-Society.
B 25. It was urged on behalf of intervenor that Section 28 of the Act
makes it clear that no court shall take cognizance of an offence unless
on a complaint made by Appropriate Authority. The composition of
Appropriate Authority is provided under Section 17(3)(a), which is a
High-Powered Body. The Supervisory Board shall review the activities
of the Appropriate Authorities as provided under Section 16A(1)(ii). The
C Supervisory Committee consists of large body. Thus, there are adequate
safeguards to maintain check and balance provided within the Act.
26. Before we dilate upon various aspects, we take note of
provisions of the Act. The Act was introduced by Parliament with the
following Statement of Objects and Reasons:
D
“STATEMENT OF OBJECTS AND REASONS
It is proposed to prohibit pre-natal diagnostic techniques for
determination of sex of the foetus leading to female foeticide.
Such abuse of techniques is discriminatory against the female sex
E and affects the dignity and status of women. A legislation is
required to regulate the use of such techniques and to provide
deterrent punishment to stop such inhuman act.
The Bill, inter alia, provides for:—
(i) prohibition of the misuse of pre-natal diagnostic
F 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
G 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

H
FEDERATION OF OBSTETRICS AND GYNECOLOGICAL 31
SOCIETIES OF INDIA v. UNION OF INDIA [ARUN MISHRA, J.]

(v) punishment for violation of the provisions of the A
proposed legislation.
2. The Bills seeks to achieve the above objectives.”
The concern of the Legislature was that the female child is not
welcomed with open arms in most of Indian families and the diagnostic
technique is being used to commit female foeticide. B

27. The female foeticide is not only the concern of India, but of
various countries. The United Nations General Assembly had adopted
Resolution No.52/106 on 11.2.1998 expressing concern about pre-natal
sex selection, female infanticide and female genital mutilation. The said
Resolution also urged all States to enact and enforce legislation protecting C
girls from all forms of violence, including female infanticide and prenatal
sex selection. The United Nations Fourth World Conference on Women
in September, 1995 adopted the Beijing Declaration and Platform for
Action. Beijing Declaration and Platform for Action identified “violence
against women” to “include forced sterilization and forced abortion, D
coercive/forced use of contraceptives, female infanticide and pre-natal
sex selection”. It further urged Governments to “enact and enforce
legislation against the perpetrators of practices and acts of violence against
women, such as female genital mutilation, female infanticide, prenatal
sex selection and dowry-related violence”. Further urged Governments
to “Eliminate all forms of discrimination against the girl child and the root E
causes of son preference, which result in harmful and unethical practices
such as pre-natal sex selection and female infanticide; this is often
compounded by the increasing use of technologies to determine foetal
sex, resulting in abortion of female foetuses”.
28. Beijing Declaration and Platform for Action was adopted at F
the 16th Plenary Meeting of the Fourth World Conference on Women
held on 15.9.1995 at Beijing. The relevant extract relating to violence
against women and actions to be taken is reproduced hereunder:
“115. Acts of violence against women also include forced
sterilization and forced abortion, coercive/forced use of G
contraceptives, female infanticide and prenatal sex selection.
Strategic objective L.2. Eliminate negative cultural attitudes and
practices against girls

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32 SUPREME COURT REPORTS [2019] 7 S.C.R.

A Actions to be taken
276. By Governments:
(a) Encourage and support, as appropriate, non-governmental
organizations and community-based organizations in their efforts
to promote changes in negative attitudes and practices towards
B girls;
(b)**
(c)**
(d) Take steps so that tradition and religion and their expressions
C are not a basis for discrimination against girls.
277. By Governments and, as appropriate, international and non-
governmental organizations:
(a)**
D (b)**
(c) Eliminate all forms of discrimination against the girl child and
the root causes of son preference, which result in harmful and
unethical practices such as prenatal sex selection and female
infanticide; this is often compounded by the increasing use of
E technologies to determine foetal sex, resulting in abortion of female
foetuses”
29. The 1994 Programme of Action of the International
Conference on Population and Development (ICPD) resolved to eliminate
all forms of discrimination against the girl child and the root causes of
F son preference, which result in harmful and unethical practices regarding
female infanticide and prenatal sex selection, and also to increase public
awareness of the value of the girl child. Further urged Governments to
take necessary measures to prevent infanticide, prenatal sex selection,
trafficking of girl children and forcing of girls in prostitution and
pornography. The International Conference on Population and
G Development adopted the Programme of Action of the International
Conference on Population and Development and passed the resolution
at the 14th Plenary meeting held on 13.9.1994. The relevant portion of
the aforesaid resolution is extracted hereunder:

H
FEDERATION OF OBSTETRICS AND GYNECOLOGICAL 33
SOCIETIES OF INDIA v. UNION OF INDIA [ARUN MISHRA, J.]

“4.15. Since in all societies discrimination on the basis of sex often A
starts at the earliest stages of life, greater equality for the girl
child is a necessary first step in ensuring that women realize their
full potential and become equal partners in development. In a
number of countries, the practice of prenatal sex selection, higher
rates of mortality among very young girls, and lower rates of school
B
enrolment for girls as compared with boys, suggest that “son
preference” is curtailing the access of girl children to food,
education and health care. This is often compounded by the
increasing use of technologies to determine foetal sex, resulting in
abortion of female foetuses. Investments made in the girl child’s
health, nutrition and education, from infancy through adolescence, C
are critical.
Objectives
4.16. The objectives are:
(a) To eliminate all forms of discrimination against the girl child D
and the root causes of son preference, which results in harmful
and unethical practices regarding female infanticide and prenatal
sex selection;
(b) To increase public awareness of the value of the girl child, and
concurrently, to strengthen the girl child’s self-image, self-esteem E
and status;
(c) To improve the welfare of the girl child, especially in regard to
health, nutrition and education.
4.23. Governments are urged to take the necessary measures to
prevent infanticide, prenatal sex selection, trafficking in girl children F
and use of girls in prostitution and pornography.”
30. The Resolution 56/139 adopted by the U.N. General Assembly,
on 26.2.2002 expressed deep concern about discrimination against the
girl child, including practices such as female infanticide, incest, early
marriage, prenatal sex selection etc. The Resolution also urged States to G
enact and enforce legislation to protect girls from all forms of violence,
including female infanticide and prenatal sex selection, female genital
mutilation, rape, domestic violence, incest, sexual abuse, sexual
exploitation, child prostitution and child pornography, and to develop age-
appropriate safe and confidential programmes and medical, social and
H
34 SUPREME COURT REPORTS [2019] 7 S.C.R.

A psychological support services to assist girls who are subjected to violence.
The General Assembly of United Nations adopted the following resolution
no.56/139 on 26.2.2002:
“Deeply concerned about discrimination against the girl child and
the violation of the rights of the girl child, which often result in less
B access for girls to education, nutrition and physical and mental
health care and in girls enjoying fewer of the rights, opportunities
and benefits of childhood and adolescence than boys and often
being subjected to various forms of cultural, social, sexual and
economic exploitation and to violence and harmful practices, such
as female infanticide, incest, early marriage, prenatal sex selection
C and female genital mutilation.
10. Also urges all States to enact and enforce legislation to protect
girls from all forms of violence, including female infanticide and
prenatal sex selection, female genital mutilation, rape, domestic
violence, incest, sexual abuse, sexual exploitation, child prostitution
D and child pornography, and to develop age-appropriate safe and
confidential programmes and medical, social and psychological
support services to assist girls who are subjected to violence.”
31. Resolution 70/138, adopted by the U.N. General Assembly on
17.12.2015, also expressed its concern at discrimination against girl child
E including pre-natal sex selection, and urged states “to enact and enforce
legislation to protect girls from all forms of violence, discrimination,
exploitation and harmful practices in all settings, including female
infanticide and prenatal sex selection”.
32. The General Assembly of United Nations in the 80th Plenary
F Meeting adopted resolution no.70/138 dated 17.12.2015 concerning the
girl child, the relevant portion of the said resolution reads thus:
“…Deeply concerned also about discrimination against the girl
child and the violation of the rights of the girl child, including girls
with disabilities, which often result in less access for girls to
G education, and to quality education, nutrition, including food
allocation, and physical and mental health-care services, in girls
enjoying fewer of the rights, opportunities and benefits of childhood
and adolescence than boys, and in leaving them more vulnerable
than boys to the consequences of unprotected and premature
sexual relations and often being subjected to various forms of
H
FEDERATION OF OBSTETRICS AND GYNECOLOGICAL 35
SOCIETIES OF INDIA v. UNION OF INDIA [ARUN MISHRA, J.]

cultural, social, sexual and economic exploitation and violence, A
abuse, rape, incest, honour-related crimes and harmful practices,
such as female infanticide, child, early and forced marriage,
prenatal sex selection and female genital mutilation.
20.Urges all States to enact and enforce legislation to protect
girls from all forms of violence, discrimination, exploitation and B
harmful practices in all settings, including female infanticide and
prenatal sex selection, female genital mutilation, rape, domestic
violence, incest, sexual abuse, sexual exploitation, child prostitution
and child pornography, trafficking and forced migration, forced
labour and child, early and forced marriage, and to develop age-
appropriate, safe, confidential and disability-accessible C
programmes and medical, social and psychological support services
to assist girls who are subjected to violence and discrimination.
29.Calls upon Governments, civil society, including the media, and
non-governmental organizations to promote human rights education
and full respect for and the enjoyment of the human rights of the D
girl child, inter alia, through the translation, production and
dissemination of age-appropriate and gender-sensitive information
material on those rights to all sectors of society, in particular to
children.
30.Requests the Secretary-General, as Chair of the United Nations E
System Chief Executives Board for Coordination, to ensure that
all organizations and bodies of the United Nations system,
individually and collectively, in particular the United Nations
Children’s Fund, the United Nations Educational, Scientific and
Cultural Organization, the World Food Programme, the United F
Nations Population Fund, the United Nations Entity for Gender
Equality and the Empowerment of Women (UN-Women), the
World Health Organization, the Joint United Nations Programme
on HIV/AIDS, the United Nations Development Programme, the
Office of the United Nations High Commissioner for Refugees
and the International Labour Organization, take into account the G
rights and the particular needs of the girl child in country
programmes of cooperation in accordance with national priorities,
including through the United Nations Development Assistance
Framework.”
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36 SUPREME COURT REPORTS [2019] 7 S.C.R.

A 33. The General Assembly of United Nations adopted the following
resolution no.52/106 on 12.12.1997 keeping in view the discrimination
against the girl child and violation of her rights:
“Deeply concerned about discrimination against the girl child and
the violation of the rights of the girl child, which often result in less
B access for girls to education, nutrition, physical and mental health
care and in girls enjoying fewer of the rights, opportunities and
benefits of childhood and adolescence than boys and often being
subjected to various forms of cultural, social, sexual and economic
exploitation and to violence and harmful practices such as incest,
early marriage, female infanticide, prenatal sex selection and
C female genital mutilation.
3. Also urges all States to enact and enforce legislation protecting
girls from all forms of violence, including female infanticide and
prenatal sex selection, female genital mutilation, incest, sexual
abuse, sexual exploitation, child prostitution and child pornography,
D and to develop age-appropriate safe and confidential programmes
and medical, social and psychological support services to assist
girls who are subjected to violence.”
34. The concern world over as to female foeticide and infanticide
is writ large from aforesaid resolution. It is worthwhile to quote the
E statistics of World Factbook, 2016 of the Central Intelligence Agency of
the United States of America on female foeticide/infanticide across the
world, which is to the following effect:
Rank Name of the country Sex ratio at birth
1. Liechtenstein 126 males/100 females

F 2. Chin a 115 males/100 female
3. Armenia 113 males/100 females
4. In dia 112 males/100 females
5. Azerbaijan 111 males/100 females
5. Viet Nam 111 males/100 females
6. Albania 110 males/100 females
G 7. Georgia 108 males/100 females
8. South Ko rea 107 males/100 females
8. Tu nisia 107 males/100 females
9. Nigeria 106 males/100 females
10. Pakistan 105 males/100 females
11. Nepal 104 males/100 females
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FEDERATION OF OBSTETRICS AND GYNECOLOGICAL 37
SOCIETIES OF INDIA v. UNION OF INDIA [ARUN MISHRA, J.]

35. There is sharp decline in the sex ratio in India. In the year A
1901 where 972 females as against 1000 males were recorded. In 1961,
it was recorded as 941; in 1971 it was 930; in 1981 it was reported 934;
in 1991 it was 927; in 2001 it was 933 and in 2011 it was 943. On behalf
of respondent-Union of India following State wise data has been furnished:
“Sex Ratio (Female per 1000 Male) at Birth by residence, India and B
bigger States, SRS 2012-14 to 2014-16
S.N. India and 2012- 2013- Ch ange 2013- 2014- Change
India 906 900 -6 900 898 -2
1. Andhra 919 918 -1 918 913 -5
Pradesh
2. Assam 918 900 -18 900 896 -4
3. Bihar 907 916 9 916 908 -8
4. Chhattisgarh 973 961 -12 961 963 2 C
5. Delhi 876 869 -7 869 857 -12
6. Gujarat 907 854 -53 854 848 -6
7. Haryana 866 831 -35 831 832 1
8. Himachal 938 924 -14 924 917 -7
9. Jam mu & 899 899 0 899 906 7
Kashm ir
10. Jharkhand 910 902 -8 902 918 16
11. Karnat aka 950 939 -11 939 935 -4
12. Kerala 974 967 -7 967 959 -8 D
13. Madhya 927 919 -8 919 922 3
Pradesh
14. Maharashtra 896 878 -18 878 876 -2
15. Orissa 953 950 -3 950 948 -2
16. Punjab 870 889 19 889 893 4
17. Rajast han 893 861 -32 861 857 -4
18. Tamil Nadu 921 911 -10 911 915 4
19. Telangana N.A. N.A. N.A. N.A. 901 N.A. E
20. Uttar 869 879 10 879 882 3
Pradesh
21. Uttarakhand 871 844 -27 844 850 6
22. West Bengal 952 951 -1 951 937 -14

The aforesaid table indicates decline in 18 States and maximum
decline of 53 points was recorded in Gujarat followed by Haryana by
F
35 points and Rajasthan by 32 points. Sex ratio of the States in 2014-
2016 indicates decline in 13 States. The maximum decline of 14 points
was recorded in West Bengal followed by Delhi recorded at 12 points.
In a publication of United Nations (UNFPA), it was published that 0.46
million girls were missing at birth on an average annually during the
period 2001-2012 as a result of sex-selective abortions. The fall in sex G
ratios does not only have an impact on the demography of the nation,
but it also gives rise to violent practices such as trafficking of women
and bride buying. The Act was conceived out of the urgency for the
prohibition of sex selection practices and prohibition of the advertisement
of the pre-natal diagnostic techniques for detection/determination of
sex. It came into force in the year 1996. It was amended in 2003 H
38 SUPREME COURT REPORTS [2019] 7 S.C.R.

A following a PIL which was filed in 2000 to improve regulation of
technology capable of sex selection. By way of amendment in the Act,
the name of the Act has been changed to Pre-Conception and Pre-
natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994.
The main purpose of the Act is to ban the use of sex selection and
misuse of pre-natal diagnostic technique for sex selective abortions and
B to regulate such techniques. The amendments have brought techniques
of pre-conception sex selection within the ambit of the Act and have
also brought use of ultrasound machines under its umbrella. It has
further provided for constitution of Central and State Level Supervisory
Board. More stringent punishments have been provided. The Appropriate
C Authorities have been given powers of civil court for search, seizure
and sealing. The maintenance of record has been made mandatory in
respect of use of ultrasound machines. It has also regulated the sale of
ultrasound machines only to the registered bodies. The Act provides
for prohibition of sex selection/determination and regulate pre-natal
diagnostic technology. Several important amendments were notified in
D the Rules. Rule 11(2) was amended in 2011 to provide for confiscation
of the unregistered machines and Section 23(1) prescribes imprisonment
upto three years and with fine upto ten thousand rupees against the
unregistered clinic/facilities and on any subsequent conviction, the
imprisonment may extend to five years and with fine which may extend
to fifty thousand rupees and Section 23(3) prescribes imprisonment upto
E
three years of imprisonment and with fine upto fifty thousand rupees
against the unregistered clinic/facilities for the first offence and for any
subsequent offence, the imprisonment may extend to five years and
with fine which may extend to one lakh rupees. Rule 3A(3) has been
inserted in 2012 to restrict the registration of medical practitioners
F qualified under the Act to conduct ultrasonography in maximum of two
ultrasound facilities within a district only. Number of hours during which
the Registered Medical Practitioner would be present in each clinic
would be specified clearly to the Appropriate Authority. The amendment
made to Rule 13 in 2012 requires every Genetic Counselling Centres,
Genetic Laboratory, Genetic Clinic, Ultrasound Clinic and Imaging
G Centre to intimate every change of employee, place, address and
equipment installed to the Appropriate Authority 30 days in advance of
the expected date of such change and seeks issuance of a new
certificate with the changes duly incorporated. Rules for six months’
training in ultrasound for the MBBS doctors have been notified vide
GSR 14(E) dated 10.1.2014. The Rules include the training curriculum,
H
criteria for accreditation of institutions which will impart training and
FEDERATION OF OBSTETRICS AND GYNECOLOGICAL 39
SOCIETIES OF INDIA v. UNION OF INDIA [ARUN MISHRA, J.]

procedure for Competency Based Evaluation Test for such trained A
medical practitioners. Revised Form ‘F’ has been notified vide GSR 77
(E) date 4.2.2014. The revised format is more simplified as the details
of invasive and non-invasive diagnostic procedures have been separated
and made more simplified.
36. There are only 586 convictions out of 4202 cases registered B
even after 24 years of existence. It reflects the challenges being faced
by the Appropriate Authority in implementing this social legislation. Below
is the chart showing State wise status of implementation of the Act as
on September 2018 submitted on behalf of respondents:
S tate wise status of impl emen tatio n of the PC&PN DT Act as o n
SEPTE MBER, 201 8
S.N o. States/UTs No. of N o. of No . o f Co n viction s* Med ical Nu mb er C
reg istered o n going M ach ines lic ens es of cases
bo dies C ourt/ seized / ca ncelled/ deci ded/
Po lice s ealed s us pen ded c losed
ca ses
1. A n dhr a 311 9 20 18 0 0 8
P radesh
2. A r un a ch al 97 0 - 0 0 -
P radesh
3. A ss am 93 0 11 4 1 0 4
4. B ihar 276 1 13 2 38 6 0 32 D
5. C hh at tis garh 70 0 14 0 0 0 7
6. Go a 17 4 1 1 0 0
7. Gu ja ra t 599 4 23 5 2 18 7 99
8. Ha ryana 214 4 31 3 5 62 85 21 15 7
9. Him acha l 46 4 0 4 1 0 3
P radesh
10. Ja m mu & 49 3 3 13 1 0 -
K as hm ir
11. Jh arkha nd 76 1 32 0 2 0 -
12. K arna ta ka 471 1 49 58 38 0 41 E
13. K erala 173 7 0 - 0 0 -
14. M ad hy a 172 3 50 17 4 3 9
P radesh
15. M ah arash tra 867 2 58 7 4 62 99 79 35 8
16. M an ipur 13 0 0 - 0 0 -
17. M eghal ay a 50 0 - 0 0 -
18. M izo ra m 61 0 - 0 0 -
19. N a ga la nd 49 0 0 0 0 -
20. Odi sha 100 1 66 - 5 0 4
21. P un ja b 160 3 14 7 38 31 1 93 F
22. R aja sthan 303 9 70 1 5 06 149 21 36 8
23. S ikkim 27 0 0 0 0 -
24. T am il Nadu 671 7 12 3 - 109 2 83
25. T elang an a 354 7 24 1 08 3 0 25
26. T ripura 48 1 - 0 0 -
27. U tta rakh and 64 7 47 12 4 0 16
28. U tta r 603 1 13 9 39 20 1 10
P radesh
29.
30.
W est B en gal
A & N Isla nd
323 8
17
24
0
29
-
0
0
0
0
1
-
G
31. C han digar h 18 3 1 - 0 0 2
32. D & N Have li 16 0 0 0 0 -
33. Da m an & 10 0 0 0 0 -
Diu
34. De lhi 158 4 10 4 1 70 10 3 57
35. La ksh adee p 9 0 - 0 0 -
36. P ud uc her ry 10 9 1 - 0 0 -
TOTAL 625 96 282 5 20 81 586 1 38 137 7
Note: *C on victio ns an d Medical lice nse s data up to Jun e 2 018 H
40 SUPREME COURT REPORTS [2019] 7 S.C.R.

A 37. In the light of aforesaid, we examine the submission raised on
behalf of petitioner based upon clerical errors. It was urged that the
license of members of noble charitable profession are being suspended
on account of clerical errors/mistakes in paper work under the Act and
the Rules made thereunder. On account of clerical errors in filling up of
the forms, it would not be appropriate to inflict the punishment. In case
B
of actual offence of sex determination, the provisions of the Act may
govern the field. As submission appears to be attractive and it requires
deep scrutiny whether it is a clerical error in filling up of the forms or is
foundation of substantial breach of the provisions of the Act and Rules
framed thereunder. It was urged that Section 23 of the Act treats unequals
C as equals and there is infirmity in the Act as the clerical error in filling up
of the Form ‘F’ cannot be treated at par with actual offence of sex
determination. There is no gradation of the offence under the Act.
Learned senior counsel has placed reliance on Uttar Pradesh Power
Corporation Ltd. vs. Ayodhya Prasad Mishra, (2008) 10 SCC 139,
wherein this Court held that unequals cannot be treated equally. Treating
D
of unequals as equals would as well offend the doctrine of equality
enshrined in Articles 14 and 16 of the Constitution. The same is extracted
hereunder:
“40. It is well settled that equals cannot be treated unequally. But
it is equally well settled that unequals cannot be treated equally.
E Treating of unequals as equals would as well offend the doctrine
of equality enshrined in Articles 14 and 16 of the Constitution.
The High Court was, therefore, right in holding that Executive
Engineers placed in Category I must get priority and preference
for promotion to the post of Superintendent Engineer over
F Executive Engineers found in Category II.”
38. It is contended that merely clerical error cannot be equated
with offences as mentioned in Sections 5 and 6 of the Act. The main
purpose and the object of the Act is being misused and more than 60 per
cent cases registered under the Act, are pertaining to non-maintenance
G of record.
39. In order to appreciate whether it is clerical omission or
otherwise, we have to delve on the provisions of the Act what is mandated
thereunder. Section 3 provides for regulation of Genetic Counselling
Centres, Genetic Laboratories and Genetic Clinics, Section 3A deals
H with prohibition of sex-selection and Section 3B deals with prohibition
FEDERATION OF OBSTETRICS AND GYNECOLOGICAL 41
SOCIETIES OF INDIA v. UNION OF INDIA [ARUN MISHRA, J.]

on sale of ultrasound machine, etc. to persons, laboratories, clinics, etc. A
not registered under the Act. The same are extracted hereunder:
“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 B
Clinic unless registered under this Act, shall conduct or associate
with, or help in, conducting activities relating to pre-natal diagnostic
techniques;
(2) no Genetic Counselling Centre or Genetic Laboratory or Genetic
Clinic shall employ or cause to be employed or take services of C
any person whether on honorary basis or on payment who does
not possess the 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 D
person, any pre-natal diagnostic techniques at a place other than
a place registered under this Act.
3A. Prohibition of sex-selection.— No person, including a
specialist or a team of specialists in the field of infertility, shall
conduct or cause to be conducted or aid in conducting by himself E
or by any other person, sex selection on a woman or a man or on
both or on any tissue, embryo, conceptus, fluid or gametes derived
from either or both of them.
3B. Prohibition on sale of ultrasound machine, etc., to
persons, laboratories, clinics, etc., not registered under the F
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.” (emphasis supplied)
G
40. Section 4 deals with regulation of pre-natal diagnostic
techniques, which is extracted hereunder:
“4. Regulation of pre-natal diagnostic techniques. — On and
from the commencement of this Act,—
H
42 SUPREME COURT REPORTS [2019] 7 S.C.R.

A (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);
B (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;
C
(iii) haemoglobinopathies;
(iv) sex-linked genetic diseases;
(v) congenital anomalies;
(vi) any other abnormalities or diseases as may be specified
D
by the Central Supervisory Board;
(3) no pre-natal diagnostic techniques shall be used or conducted
unless the person qualified to do so is satisfied for reasons to be
recorded in writing that any of the following conditions are fulfilled,
namely:—
E
(i) age of the pregnant woman is above thirty-five years;
(ii) the pregnant woman has undergone of two or more
spontaneous abortions or foetal loss;
(iii) the pregnant woman had been exposed to potentially
F teratogenic agents such as drugs, radiation, infection or
chemicals;
(iv) the pregnant woman or her spouse has a family history of
mental retardation or physical deformities such as, spasticity
or any other genetic disease;
G
(v) any other condition as may be specified by the Board;
Provided that the person conducting ultrasonography on a
pregnant woman shall keep complete record thereof in clinic in
such manner, as may be prescribed, and any deficiency or
inaccuracy found therein shall amount to contravention of the
H
FEDERATION OF OBSTETRICS AND GYNECOLOGICAL 43
SOCIETIES OF INDIA v. UNION OF INDIA [ARUN MISHRA, J.]

provisions of section 5 or section 6 unless contrary is proved by A
the person conducting such ultrasonography;
(4) no person including a relative or husband of the pregnant woman
shall seek or encourage the conduct of any pre-natal diagnostic
techniques on her except for the purposes specified in clause (2).
(5) no person including a relative or husband of a woman shall B
seek or encourage the conduct of any sex-selection technique on
her or him or both.”
(emphasis supplied)
There is prohibition created under Section 4(1) to use any registered C
Genetic Counselling Centre or Genetic Laboratory or Genetic Clinic for
conducting pre-natal diagnostic techniques except for the purposes
specified in sub-section (2) of Section 4. Wrong expression has been
used as clause (2) in the Act, where it should be sub-section (2). Be that
as it may. Section 4(2) provides for conducting of pre-natal diagnostic
techniques for the purpose of detection of abnormalities. D
Section 4(3) provides that no pre-natal diagnostic techniques shall
be used unless the person qualified to do so is satisfied for the reasons to
be recorded in writing that prescribed conditions are fulfilled such as
age of the pregnant women is above thirty-five years; the pregnant woman
has undergone two or more spontaneous abortions or foetal loss; she E
had been exposed to potentially teratogenic agents such as drugs, radiation,
infection or chemicals; the pregnant woman or her spouse has a family
history of mental retardation or physical deformities as prescribed therein;
or any other condition as may be specified by the Board.
In the absence of aforesaid fulfilment of the aforesaid conditions F
provided in Section 4(3) and in the absence of abnormality as provided
in Section 4(2), no such test can be performed. Proviso to Section 4(3)
makes it mandatory that person conducting ultrasonography on a pregnant
woman shall keep complete record as may be prescribed and any
deficiency or inaccuracy found therein shall amount to contravention of
G
the provisions of Section 5 or Section 6 unless contrary is proved by the
person conducting such ultrasonography. Section 5 provides for written
consent of pregnant woman and prohibition of communicating the sex of
foetus, whereas Section 6 provides that determination of sex is prohibited.
Sections 5 and 6 are extracted below:
H
44 SUPREME COURT REPORTS [2019] 7 S.C.R.

A “5. Written consent of pregnant woman and prohibition of
communicating the sex of foetus.—
(1) No person referred to in clause (2) of section 3 shall conduct
the pre-natal diagnostic procedures unless—
(a) he has explained all known side and after effects of such
B procedures to the pregnant woman concerned;
(b) he has obtained in the prescribed form her written consent
to undergo such procedures in the language which she
understands; and

C (c) a copy of her written consent obtained under clause (b) is
given to the pregnant woman.
(2) No person including the person conducting pre-natal diagnostic
procedures shall communicate to the pregnant woman concerned
or her relatives or any other person the sex of the foetus by words,
D signs, or in any other manner.
6. Determination of sex prohibited.— On and from the
commencement of this Act, —
(a) no Genetic Counselling Centre or Genetic Laboratory or
Genetic Clinic shall conduct or cause to be conducted in its Centre,
E Laboratory or Clinic, pre-natal diagnostic techniques including
ultrasonography, for the purpose of determining the sex of a foetus;
(b) no person shall conduct or cause to be conducted any pre-
natal diagnostic techniques including ultrasonography for the
purpose of determining the sex of a foetus.
F (c) no person shall, by whatever means, cause or allow to be
caused selection of sex before or after conception.”
(emphasis supplied)
41. Independently, specific provisions have been made barring
G use of technology i.e., pre-natal diagnostic techniques for determination
of sex of foetus under Section 6 of the Act. The use of technology can
only be for the purposes as provided in Section 4(2) and with the pre-
conditions as provided in Section 4(3).
42. As a safeguard to arbitrary use of powers by concerned
authorities the constitution of State Supervisory Board and Union Territory
H
FEDERATION OF OBSTETRICS AND GYNECOLOGICAL 45
SOCIETIES OF INDIA v. UNION OF INDIA [ARUN MISHRA, J.]

Supervisory Board is provided in Section 16A, which is a large body A
consisting of various representatives. It has to create public awareness,
review the activities of the Appropriate Authorities and to monitor the
implementation of the provisions of the Act and to send the periodical
report. Relevant portion of Section 16A of the Act reads thus:
“16A. Constitution of State Supervisory Board and Union B
territory Supervisory Board.—
(1) Each State and Union territory having Legislature shall constitute
a Board to be known as the State Supervisory Board or the Union
territory Supervisory Board, as the case may be, which shall have
the following functions:— C
(i) to create public awareness against the practice of pre-
conception sex selection and pre-natal determination of sex of
foetus leading to female foeticide in the State;
(ii) to review the activities of the Appropriate Authorities
functioning in the State and recommend appropriate action D
against them;
(iii) to monitor the implementation of provisions of the Act and
the rules and make suitable recommendations relating thereto,
to the Board;
E
(iv) to send such consolidated reports as may be prescribed in
respect of the various activities undertaken in the State under
the Act to the Board and the Central Government; and
(v) any other functions as may be prescribed under the Act.
(2) The State Board shall consist of,— F
(a) the Minister in charge of Health and Family Welfare in the
State, who shall be the Chairperson, ex-officio;
(b) Secretary in charge of the Department of Health and Family
Welfare who shall be the Vice-Chairperson, ex-officio;
G
(c) Secretaries or Commissioners in charge of Departments
of Women and Child Development, Social Welfare, Law and
Indian System of Medicines and Homoeopathy, ex-officio, or
their representatives;

H
46 SUPREME COURT REPORTS [2019] 7 S.C.R.

A (d) Director of Health and Family Welfare or Indian System
of Medicines and Homoeopathy of the State Government,
ex-officio;
(e) three women members of Legislative Assembly or
Legislative Council;
B (f) ten members to be appointed by the State Government out
of which two each shall be from the following categories:—
(i) eminent social scientists and legal experts;
(ii) eminent women activists from non-governmental
C organizations or otherwise;
(iii) eminent gynaecologists and obstetricians or experts of
stri-roga or prasuti-tantra;
(iv) eminent paediatricians or medical geneticists;
(v) eminent radiologists or sonologists;
D
(g) an officer not below the rank of Joint Director in charge of
Family Welfare, who shall be the Member Secretary,
ex-officio.
(3) The State Board shall meet at least once in four months.”
E 43. The constitution of Appropriate Authority and Advisory
Committee is provided in Section 17. It consists of an officer of or
above the rank of the Joint Director of Health and Family Welfare as
Chairperson, an eminent woman representing women’s organization and
an officer of Law Department of the State or the Union Territory as
F members as the case may be. The functions of the Appropriate Authority
are prescribed in Section 17(4). It empowers the Appropriate Authority
to grant, suspend or cancel the registration, enforce standards, investigate
complaints and to do other acts as provided therein. Constitution of
Advisory Committee is also provided under Section 17(6), to aid and
advise the Appropriate Authority, consisting of three medical experts
G from amongst gynaecologists, obstetricians, paediatricians and medical
geneticists, one legal expert, an officer as provided thereunder, and three
eminent social workers. No person who has been associated with the
use or promotion of pre-natal diagnostic techniques for determination of
sex or sex selection can be member of the Advisory Committee. Section
H 17 is extracted hereunder:
FEDERATION OF OBSTETRICS AND GYNECOLOGICAL 47
SOCIETIES OF INDIA v. UNION OF INDIA [ARUN MISHRA, J.]

“17. Appropriate Authority and Advisory Committee.— A
(1) The Central Government shall appoint, by notification in the
Official Gazette, one or more Appropriate Authorities for each of
the Union territories for the purposes of this Act.
(2) The State Government shall appoint, by notification in the
Official Gazette, one or more Appropriate Authorities for the whole B
or part of the State for the purposes of this Act having regard to
the intensity of the problem of pre-natal sex determination leading
to female foeticide.
(3) The officers appointed as Appropriate Authorities under sub-
section (1) or sub-section (2) shall be,— C

(a) when appointed for the whole of the State or the Union
territory, consisting of the following three members:—
(i) an officer of or above the rank of the Joint Director of
Health and Family Welfare—Chairperson; D
(ii) an eminent woman representing women’s organization;
and
(iii) an officer of Law Department of the State or the Union
territory concerned:
Provided that it shall be the duty of the State or the Union E
territory concerned to constitute multi-member State or Union
territory level Appropriate Authority within three months of
the coming into force of the Pre-natal Diagnostic Techniques
(Regulation and Prevention of Misuse) Amendment Act, 2002:
Provided further that any vacancy occurring therein shall be F
filled within three months of the occurrence.
(b) when appointed for any part of the State or the Union
territory, of such other rank as the State Government or the
Central Government, as the case may be, may deem fit.
G
(4) The Appropriate Authority shall have the following functions,
namely:—
(a) to grant, suspend or cancel registration of a Genetic
Counselling Centre, Genetic Laboratory or Genetic Clinic;
H
48 SUPREME COURT REPORTS [2019] 7 S.C.R.

A (b) to enforce standards prescribed for the Genetic Counselling
Centre, Genetic Laboratory and Genetic Clinic;
(c) to investigate complaints of breach of the provisions of this
Act or the rules made thereunder and take immediate action;
(d) to seek and consider the advice of the Advisory Committee,
B constituted under sub-section (5), on application for registration
and on complaints for suspension or cancellation of registration;
(e) to take appropriate legal action against the use of any sex
selection technique by any person at any place, suo motu or
brought to its notice and also to initiate independent
C investigations in such matter;
(f) to create public awareness against the practice of sex
selection or pre-natal determination of sex;
(g) to supervise the implementation of the provisions of the
D Act and rules;
(h) to recommend to the Board and State Boards modifications
required in the rules in accordance with changes in technology
or social conditions;
(i) to take action on the recommendations of the Advisory
E Committee made after investigation of complaint for suspension
or cancellation of registration.
(5) The Central Government or the State Government, as the
case may be, shall constitute an Advisory Committee for each
Appropriate Authority to aid and advise the Appropriate Authority
F in the discharge of its functions, and shall appoint one of the
members of the Advisory Committee to be its Chairman.
(6) The Advisory Committee shall consist of—
(a) three medical experts from amongst gynaecologists,
obstericians, paediatricians and medical geneticists;
G
(b) one legal expert;
(c) one officer to represent the department dealing with
information and publicity of the State Government or the Union
territory, as the case may be;
H
FEDERATION OF OBSTETRICS AND GYNECOLOGICAL 49
SOCIETIES OF INDIA v. UNION OF INDIA [ARUN MISHRA, J.]

(d) three eminent social workers of whom not less than one A
shall be from amongst representatives of women’s
organisations.
(7) No person who has been associated with the use or promotion
of pre-natal diagnostic techniques for determination of sex or sex
selection shall be appointed as a member of the Advisory B
Committee.
(8) The Advisory Committee may meet as and when it thinks fit
or on the request of the Appropriate Authority for consideration
of any application for registration or any complaint for suspension
or cancellation of registration and to give advice thereon: C
Provided that the period intervening between any two meetings
shall not exceed the prescribed period.
(9) The terms and conditions subject to which a person may be
appointed to the Advisory Committee and the procedure to be
followed by such Committee in the discharge of its functions shall D
be such as may be prescribed.”
44. Section 17A empowers Appropriate Authority to summon any
person who is in possession of any information relating to violation of the
provisions of the Act and production of documents, issue search warrant
etc. It is mandatory that such Genetic Counselling Centres, Laboratories E
or Clinics should be registered under Section 18 of the Act.
45. Section 20 deals with cancellation or suspension of registration.
An action can be taken as provided under Section 20(2) after giving
reasonable opportunity of being heard. In case there is breach of
provisions of the Act or the Rules, and the same is without prejudice to F
any criminal action that it may take against such Centres, Laboratory or
Clinic, the Appropriate Authority in public interest for reasons to be
recorded in writing, can suspend the registration of any Genetic
Counselling Centres, Laboratories or Clinics under Section 20(3) of the
Act without issuing any notice referred to in sub-section (1) of Section
G
20. The provisions of appeal against the order of suspension or
cancellation of registration passed by Appropriate Authority has been
provided in Section 21. Sections 20 and 21 are extracted hereunder:
“20. Cancellation or suspension of registration.— (1). The
Appropriate Authority may suo moto, or on complaint, issue a
H
50 SUPREME COURT REPORTS [2019] 7 S.C.R.

A notice to the Genetic Counselling Centre, Genetic Laboratory or
Genetic Clinic to show cause 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
B and having regard to the advice of the Advisory Committee, the
Appropriate Authority is satisfied that there has been a breach of
the provisions of this Act or the rules, it may, without prejudice to
any criminal action that it may take against such Centre,
Laboratory or Clinic, suspend its registration for such period as it
may think fit or cancel its registration, as the case may be.
C
(3) Notwithstanding anything contained in sub-sections (1) and
(2), if the Appropriate Authority is of the opinion that it is necessary
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
D issuing any such notice referred to in sub-section (1).
21. Appeal.— The Genetic Counselling Centre, Genetic
Laboratory or Genetic Clinic may, within thirty days from the date
of receipt of the order of suspension or cancellation of registration
passed by the Appropriate Authority under section 20, prefer an
E appeal against such order to—
(i) the Central Government, where the appeal is against the
order of the Central Appropriate Authority; and
(ii) the State Government, where the appeal is against the order
F of the State Appropriate Authority,
in the prescribed manner.”
(emphasis supplied)
46. Section 22 deals with prohibition of advertisement relating to
pre-conception and pre-natal determination of sex and punishment for
G contravention.
47. Section 23 deals with offences and penalties. Section 23(1)
provides for contravention of any provisions of the Act or Rules made
thereunder, punishment with imprisonment for a term which may extend
to three years and with fine which may extend to ten thousand rupees.
H
FEDERATION OF OBSTETRICS AND GYNECOLOGICAL 51
SOCIETIES OF INDIA v. UNION OF INDIA [ARUN MISHRA, J.]

Section 23(2) contains provision with respect to reporting of name of the A
registered medical practitioner by the Appropriate Authority to the State
Medical Council concerned for passing appropriate order including
suspension of the registration, if the charges are framed by the Court
and till the case is disposed of and on conviction for removal of his name
from the register of the Council for a period of five years for the first
B
offence and permanently for the subsequent offence. Any person who
seek aid of any Genetic Counselling Centre, Laboratory, Clinic or
ultrasound clinic or imaging clinic etc. for sex selection, shall be punishable
with imprisonment which may extend to three years and with fine which
may extend to fifty thousand rupees for the first offence and for any
subsequent offence with imprisonment which may extend to five years C
and with fine which may extend to one lakh rupees. If a woman is
compelled by her husband or any other relative to undergo pre-natal
diagnostic technique for the purpose of Section 4(2), such person shall
be liable for abetment of offence under Section 23(3). Sections 23 and
24 are extracted hereunder:
D
“23. Offences and penalties.— (1) Any medical geneticist,
gynaecologist, registered medical practitioner or any person who
owns a Genetic Counselling Centre, a Genetic Laboratory or a
Genetic Clinic or is employed in such a Centre, Laboratory or
Clinic and renders his professional or technical services to or at
such a Centre, Laboratory or Clinic, whether on an honorary basis E
or otherwise, and who contravenes any of the provisions of this
Act or rules made thereunder shall be punishable with
imprisonment for a term which may extend to three years and
with fine which may extend to ten thousand rupees and on any
subsequent conviction, with imprisonment which may extend to F
five years and with fine which may extend to fifty thousand rupees.
(2) The name of the registered medical practitioner shall be
reported by the Appropriate Authority to the State Medical Council
concerned for taking necessary action including suspension of
the registration if the charges are framed by the court and till the G
case is disposed of and on conviction for removal of his name
from the register of the Council for a period of five years for the
first offence and permanently for the subsequent offence.
(3) Any person who seeks the aid of any Genetic Counselling
Centre, Genetic Laboratory, Genetic Clinic or ultrasound clinic or H
52 SUPREME COURT REPORTS [2019] 7 S.C.R.

A imaging clinic or of a medical geneticist, gynaecologist, sonologist
or imaging specialist or registered medical practitioner or any other
person for sex selection or for conducting pre-natal diagnostic
techniques on any pregnant women for the purposes other than
those specified in sub-section (2) of section 4, he shall be punishable
with imprisonment for a term which may extend to three years
B
and with fine which may extend to fifty thousand rupees for the
first offence and for any subsequent offence with imprisonment
which may extend to five years and with fine which may extend
to one lakh rupees.
(4) For the removal of doubts, it is hereby provided, that the
C provisions of sub-section (3) shall not apply to the woman who
was compelled to undergo such diagnostic techniques or such
selection.
24. Presumption in the case of conduct of pre-natal
diagnostic techniques.—Notwithstanding anything contained in
D the Indian Evidence Act, 1872 (1 of 1872), the court shall presume
unless the contrary is proved that the pregnant woman was
compelled by her husband or any other relative, as the case may
be, to undergo pre-natal diagnostic technique for the purposes
other than those specified in sub-section (2) of section 4 and such
E person shall be liable for abetment of offence under sub-section
(3) of section 23 and shall be punishable for the offence specified
under that section.”
(emphasis supplied)
48. Section 25 of the Act deals with the penalty for contravention
F of the provisions of the Act or rules for which no specific punishment is
provided. Any contravention under this Section shall be punishable with
imprisonment for a term which may extend to three months or with fine
which may extend to one thousand rupees or both and in case of
continuing contravention with an additional fine which may extend to
G five hundred rupees for every day.
49. Section 27 makes offence to be cognizable, non-bailable and
non-compoundable. Section 27 is extracted hereunder:
“27. Offence to be cognizable, non-bailable and non-
compoundable.-Every offence under this Act shall be cognizable,
H non-bailable and non-compoundable.”
FEDERATION OF OBSTETRICS AND GYNECOLOGICAL 53
SOCIETIES OF INDIA v. UNION OF INDIA [ARUN MISHRA, J.]

50. The mode of taking cognizance of offence is provided in A
Section 28 on a complaint made by the Appropriate Authority or any
officer authorised in this behalf; or by a person who has given notice of
not less than fifteen days to the Appropriate Authority of the alleged
offence and of his intention to make a complaint to the court. The
Metropolitan Magistrate or a Judicial Magistrate is competent to try any
B
offence punishable under this Act. Maintenance of records is provided
in Section 29 and that has to be preserved for two years. In case any
criminal or other proceedings are instituted against any Genetic
Counselling Centre, Laboratory or Clinic, the records shall be preserved
till the final disposal of such proceedings. Section 30 empowers
Appropriate Authority to search and seize records etc. Section 31 C
provides for protection of action taken in good faith.
51. Section 32 empowers the Central Government to make rules
for carrying out the provisions of the Act. Section 33 gives power to the
Board to make regulations with the previous sanction of the Central
Government. Rules and regulations are required to be laid before the D
Parliament as provided in Section 34.
52. Rule 9 of the Rules provides for maintenance and preservation
of records. The same is extracted hereunder:
9. Maintenance and preservation of records.—
E
(1) Every Genetic Counselling Centre, Genetic Laboratory and
Genetic Clinic including a mobile Genetic Clinic, Ultrasound Clinic
and Imaging Centre shall maintain a register showing, in serial
order, the names and addresses of the men or women given genetic
counselling, subjected to pre-natal diagnostic procedures or pre-
natal diagnostic tests, the names of their spouse or father and the F
date on which they first reported for such counselling, procedure
or test.
(2) The record to be maintained by every Genetic Counselling
Centre, in respect of each woman counselled shall be as specified
in Form D. G
(3) The record to be maintained by every Genetic Laboratory, in
respect of each man or woman subjected to any pre-natal
diagnostic procedure/technique/test, shall be as specified in Form
E.
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54 SUPREME COURT REPORTS [2019] 7 S.C.R.

A (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.
(5) The Appropriate Authority shall maintain a permanent record
B of applications for grant or renewal of certificate of registration
as specified in Form H. Letters of intimation of every change of
employee, place, address and equipment installed shall also be
preserved as permanent records.
(6) All case related-records, forms of consent, laboratory results,
C microscopic pictures, sonographic plates or slides,
recommendations and letters shall be preserved by the Genetic
Counselling Centre, Genetic Laboratory or Genetic Clinic,
Ultrasound Clinic or Imaging Centre for a period of two years
from the date of completion of counselling, pre-natal diagnostic
procedure or pre-natal diagnostic test, as the case may be. In the
D event of any legal proceedings, the records shall be preserved till
the final disposal of legal proceedings, or till the expiry of the said
period of two years, whichever is later.
(7) In case the Genetic Counselling Centre or Genetic Laboratory
or Genetic Clinic or Ultrasound Clinic or Imaging Centre maintains
E records on computer or other electronic equipment, a printed copy
of the record shall be taken and preserved after authentication by
a person responsible for such record.
(8) Every Genetic Counselling Centre, Genetic Laboratory, Genetic
Clinic, Ultrasound Clinic and Imaging Centre shall send a complete
F report in respect of all pre-conception or pregnancy related
procedures/techniques/tests conducted by them in respect of each
month by 5th day of the following month to the concerned
Appropriate Authority.”
Rule 9 makes it mandatory to maintain a register showing in serial
G order the names and addresses of the men or women given genetic
counselling, subjected to pre-natal diagnostic procedures or pre-natal
diagnostic tests, the name of their spouse or father and the date on
which they first reported for such counselling. Rule 9(2) states that
record to be maintained uniformly. Rule 9(4) provides that record to be
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FEDERATION OF OBSTETRICS AND GYNECOLOGICAL 55
SOCIETIES OF INDIA v. UNION OF INDIA [ARUN MISHRA, J.]

maintained by every Genetic Clinic in respect of each man or woman A
subjected to any pre-natal diagnostic procedure/technique/test, shall be
specified in Form ‘F’. Rule 10 deals with conditions for conducting pre-
natal diagnostic procedures. Rule 10(1A) provides that it is mandatory
for every person conducting ultrasonography to declare that he/she has
neither detected nor disclosed the sex of foetus of the pregnant woman
B
to anybody. The pregnant woman shall declare before undergoing the
test that she does not want to know the sex of her foetus. Rule 19
provides for an appeal against the decision of Appropriate Authority.
Form ‘F’, which is the bone of contention of the learned counsel for the
parties, is extracted hereunder:
“FORM F C

FORM FOR MAINTENANCE OF RECORD IN RESPECT
OF PREGNANT WOMAN BY GENETIC CLINIC/
ULTRASOUND CLINIC/IMAGING CENTRE
1. Name and address of the Genetic Clinic/Ultrasound Clinic/ D
Imaging Centre.
2. Registration No.
3. Patient’s name and her age
4. Number of children with sex of each child
E
5. Husband’s/Father’s name
6. Full address with Tel. No., if any
7. Referred by (full name and address of Doctor(s) / Genetic
Counselling Centre (referral note to be preserved carefully
with case papers)/self referral F

8. Last menstrual period/weeks of pregnancy
9. History of genetic/medical disease in the family (specify)
Basis of diagnosis
G
(a) Clinical
(b) Bio-chemical
(c) Cytogenetic
(d) Other (e.g. radiological, ultrasonography etc. specify)
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56 SUPREME COURT REPORTS [2019] 7 S.C.R.

A 10. Indication for pre-natal diagnosis
A. Previous child/children with:
(i) Chromosomal disorders
(ii) Metabolic disorders
B (iii) Congenital anomaly
(iv) Mental retardation
(v) Haemoglobinopathy
(vi) Sex linked disorders
C
(vii) Single gene disorder
(viii) Any other (specify)
B. Advanced maternal age (35 years)
C. Mother/father/sibling has genetic disease (specify)
D
D. Other (specify)
11. Procedures carried out (with name and registration No. of
Gynaecologist/ Radiologist/ Registered Medical Practitioner)
who performed it.
E Non-Invasive
(i) Ultrasound (specify purpose for which ultrasound is to
done during pregnancy)
[List of indications for ultrasonography of pregnant women
are given in the note below]
F
Invasive
(ii) Amniocentesis
(iii) Chorionic Villi aspiration
(iv) Foetal biopsy
G
(v) Cordocentesis
(vi) Any other (specify)
12. Any complication of procedure – please specify

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FEDERATION OF OBSTETRICS AND GYNECOLOGICAL 57
SOCIETIES OF INDIA v. UNION OF INDIA [ARUN MISHRA, J.]

13. Laboratory tests recommended A
(i) Chromosomal studies
(ii) Biochemical studies
(iii) Molecular studies
(iv) Preimplantation genetic diagnosis B
14. Result of
(a) pre-natal diagnostic procedure (give details)
(b) Ultrasonography Normal/Abnormal (specify abnormality
detected, if any). C
15. Date(s) on which procedures carried out.
16. Date on which consent obtained. (In case of invasive)
17. The result of pre-natal diagnostic procedure were conveyed
to ……….on …………… D
18. 18. Was MTP advised/conducted?
19. Date on which MTP carried out

Date …………… Name, Signature and Registration number E
Place…………….. of the Gynaecologist/Radiologist/Director of
the Clinic
DECLARATION OF PREGNANT WOMAN
I, Ms…………………..(name of the pregnant woman) declare
that by undergoing ultrasonography /image scanning etc. I do not F
want to know the sex of my foetus.
Signature/Thump impression of pregnant woman
DECLARATON OF DOCTOR/PERSON CONDUCTING
ULTRASONOGRAPHY/IMAGE SCANNING G
I,……………………(name of the person conducting
ultrasonography/image scanning) declare that while conducting
ultrasonography/image scanning on Ms…………………..(name
of the pregnant woman), I have neither detected nor disclosed
the sex of her foetus to any body in any manner.
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58 SUPREME COURT REPORTS [2019] 7 S.C.R.

A Name and signature of the person conducting
ultrasonography/image scanning/Director or owner of
genetic clinic/ultrasound clinic/imaging centre.
Important Notes:—
(i) Ultrasound is not indicated/advised/performed to determine
B the sex of foetus except for diagnosis of sex-linked diseases such
as Duchenne Muscular Dystrophy, Haemophilia A & B, etc.
(ii) During pregnancy Ultrasonography should only be performed
when indicated. The following is the representative list of
indications for ultrasound during pregnancy.
C
(1) To diagnose intra-uterine and/or ectopic pregnancy and confirm
viability.
(2) Estimation of gestational age (dating).
(3) Detection of number of foetuses and their chorionicity.
D
(4) Suspected pregnancy with IUCD in-situ or suspected pregnancy
following contraceptive failure/MTP failure.
(5) Vaginal bleeding / leaking.
(6) Follow-up of cases of abortion.
E (7) Assessment of cervical canal and diameter of internal os.
(8) Discrepancy between uterine size and period of amenorrhoea.
(9) Any suspected adenexal or uterine pathology / abnormality.
(10) Detection of chromosomal abnormalities, foetal structural
F defects and other abnormalities and their follow-up.
(11) To evaluate foetal presentation and position.
(12) Assessment of liquor amnii.
(13) Preterm labour / preterm premature rupture of membranes.
G (14) Evaluation of placental position, thickness, grading and
abnormalities (placenta praevia, retroplacental haemorrhage,
abnormal adherence etc.).
(15) Evaluation of umbilical cord – presentation, insertion, nuchal
encirclement, number of vessels and presence of true knot.
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FEDERATION OF OBSTETRICS AND GYNECOLOGICAL 59
SOCIETIES OF INDIA v. UNION OF INDIA [ARUN MISHRA, J.]

(16) Evaluation of previous Caesarean Section scars. A
(17) Evaluation of foetal growth parameters, foetal weight and
foetal well being.
(18) Colour flow mapping and duplex Doppler studies.
(19) Ultrasound guided procedures such as medical termination B
of pregnancy, external cephalic version etc. and their follow-up.
(20) Adjunct to diagnostic and therapeutic invasive interventions
such as chorionic villus sampling (CVS), amniocenteses, foetal
blood sampling, foetal skin biopsy, amnioinfusion, intrauterine
infusion, placement of shunts etc. C
(21) Observation of intra-partum events.
(22) Medical/surgical conditions complicating pregnancy.
(23) Research/scientific studies in recognised institutions.
Person conducting ultrasonography on a pregnant woman shall D
keep complete record thereof in the clinic/centre in Form F and
any deficiency or inaccuracy found therein shall amount to
contravention of provisions of section 5 or section 6 of the Act,
unless contrary is proved by the person conducting such
ultrasonography.”
E
53. The Act and Rules are not the only regulatory framework
which requires the medical fraternity to keep proper record. The medical
profession has highly specialised nature and considering the nature of
services rendered by medical professional, proper maintenance of records
is an integral part of the medical services. It is contended on behalf of
Medical Council of India that the Medical Council of India (MCI) under F
Section 33 of the Indian Medical Council Act, 1956 has framed the Indian
Medical Council (Professional Conduct, Etiquette and Ethics) Regulations,
2002, which also placed a burden on physicians to observe the law of
the country. By the said Regulations, it is mandatory for every doctor to
maintain the records of the patients treated by him/her and non- G
maintaining of records is a misconduct. MCI Regulation 1.3 deals with
maintenance of medical records, which reads thus:
“1.3 Maintenance of medical records:
1.3.1 Every physician shall maintain the medical records pertaining
to his / her indoor patients for a period of 3 years from the date of H
60 SUPREME COURT REPORTS [2019] 7 S.C.R.

A commencement of the treatment in a standard proforma laid down
by the Medical Council of India and attached as Appendix 3.
1.3.2. If any request is made for medical records either by the
patients / authorised attendant or legal authorities involved, the
same may be duly acknowledged and documents shall be issued
B within the period of 72 hours.
1.3.3 A Registered medical practitioner shall maintain a Register
of Medical Certificates giving full details of certificates issued.
When issuing a medical certificate he / she shall always enter the
identification marks of the patient and keep a copy of the certificate.
C He / She shall not omit to record the signature and/or thumb mark,
address and at least one identification mark of the patient on the
medical certificates or report. The medical certificate shall be
prepared as in Appendix 2.
1.3.4 Efforts shall be made to computerize medical records for
D quick retrieval.”
(emphasis supplied)
54. Regulation 7.1 under Chapter 7 deals with misconduct
committed by a doctor by violating any provisions of the Regulations,
whereas Regulation 7.2 provides that the failure to maintain the medical
E records of indoor patient for a period of three years and refusal to provide
the medical record to a patient on request within 72 hours is a misconduct.
Regulation 7.6 deals with misconduct relating to sex determination and
termination of pregnancy. The relevant portion of Regulation 7 is
reproduced hereunder:
F “7. MISCONDUCT
The following acts of commission or omission on the part of a
physician shall constitute professional misconduct rendering him/
her liable for disciplinary action.
7.1 Violation of the Regulations: If he/she commits any violation
G of these Regulations.
7.2 If he/she does not maintain the medical records of his/her
indoor patients for a period of three years as per regulation 1.3
and refuses to provide the same within 72 hours when the patient

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FEDERATION OF OBSTETRICS AND GYNECOLOGICAL 61
SOCIETIES OF INDIA v. UNION OF INDIA [ARUN MISHRA, J.]

or his/her authorised representative makes a request for it as per A
the regulation 1.3.2.
*** *** ***
7.6 Sex Determination Tests: On no account sex determination
test shall be undertaken with the intent to terminate the life of a
female foetus developing in her mother’s womb, unless there are B
other absolute indications for termination of pregnancy as specified
in the Medical Termination of Pregnancy Act, 1971. Any act of
termination of pregnancy of normal female foetus amounting to
female foeticide shall be regarded as professional misconduct on
the part of the physician leading to penal erasure besides rendering C
him liable to criminal proceedings as per the provisions of this
Act.”
55. Regulation 8 of the MCI Regulation deals with punishment
and disciplinary action for misconduct committed by a doctor. The relevant
portion of Regulation 8 reads thus: D
“8. PUNISHMENT AND DISCIPLINARY ACTION
8.1 It must be clearly understood that the instances of offences
and of Professional misconduct which are given above do not
constitute and are not intended to constitute a complete list of the
infamous acts which calls for disciplinary action, and that by issuing E
this notice the Medical Council of India and or State Medical
Councils are in no way precluded from considering and dealing
with any other form of professional misconduct on the part of a
registered practitioner. Circumstances may and do arise from time
to time in relation to which there may occur questions of F
professional misconduct which do not come within any of these
categories. Every care should be taken that the code is not violated
in letter or spirit. In such instances as in all others, the Medical
Council of India and/or State Medical Councils have to consider
and decide upon the facts brought before the Medical Council of
India and/or State Medical Councils. G
8.2 It is made clear that any complaint with regard to professional
misconduct can be brought before the appropriate Medical Council
for Disciplinary action. Upon receipt of any complaint of
professional misconduct, the appropriate Medical Council would
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62 SUPREME COURT REPORTS [2019] 7 S.C.R.

A hold an enquiry and give opportunity to the registered medical
practitioner to be heard in person or by pleader. If the medical
practitioner is found to be guilty of committing professional
misconduct, the appropriate Medical Council may award such
punishment as deemed necessary or may direct the removal
altogether or for a specified period, from the register of the name
B
of the delinquent registered practitioner. Deletion from the Register
shall be widely publicized in local press as well as in the publications
of different Medical Associations/ Societies/Bodies.”
56. It is further pointed out that Pharmacy Practice Regulations,
2015 also require pharmacists to maintain records. The relevant portion
C of the Regulations is extracted hereunder:
“6.2 Maintenance of patient records.—
(a) Every registered pharmacist shall maintain the medical/
prescription records pertaining to his / her patients for a period of
D 5 years from the date of commencement of the treatment as laid
down by the Pharmacy Council of India in Appendix II.
(b) If any request is made for medical records either by the patients/
authorised attendant or legal authorities involved, the same may
be duly acknowledged and documents shall be issued within the
E period of 72 hours.
(c) Efforts shall be made to computerize medical/prescription
records for quick retrieval.”
57. Reference has also been made to the provisions of the
Transplantation of Human Organs and Tissues Act, 1994 and Rules,
F which contain provisions that are similar to the Act. Section 20 of the
Transplantation of Human Organs and Tissues Act, 1994, reads thus:
“20. Punishment for contravention of any other provision
of this Act.— Whoever contravenes any provision of this Act or
any rule made, or any condition of the registration granted,
G thereunder for which no punishment is separately provided in this
Act, shall be punishable with imprisonment for a term which may
extend to five years or with fine which may extend to twenty lakh
rupees.”

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FEDERATION OF OBSTETRICS AND GYNECOLOGICAL 63
SOCIETIES OF INDIA v. UNION OF INDIA [ARUN MISHRA, J.]

58. Reference has also been made to the Medical Termination of A
Pregnancy Act, 1971, which also places an obligation on medical
professional to maintain proper records.
59. When we scrutinise the Form ‘F’ with the provisions of the
Act/Rules and there cannot be any dispute with respect to serial Nos.1
and 2 wherein name and address of Genetic Laboratory and its registration B
number is required to be mentioned in the Form as it is necessary to
have a registration under Section 18 of the Act. It cannot be said to be
a clerical requirement. Patient name and her age at serial No.3 is also
absolutely necessary so as to identify a person who is undergoing the
test and before the age of 35 years, it cannot be conducted as provided
under Section 4(3)(i). The same is as per the mandatory requirement of C
Section 4. Husband’s/father’s name is also necessary as per the statutory
mandate for the purpose of identification of patient. Full address is also
mandatory so as to ascertain the identity who is undergoing such test.
In case these information are kept vague, the violation of the Act would
be blatant and unchecked and offence can never be detected. Information D
at serial No.8 of the Form ‘F’ requires last menstrual period/weeks of
pregnancy to be mentioned, same is also necessary to be mentioned as
it has co-relation with the investigations and provisions of the Act and
the rules framed thereunder. The column in Form at serial No.9 requires
history of genetic/medical disease in the family to be specified which is
as per the mandate of Section 4(3)(iv) of the Act. Form ‘F’ at serial E
No.10 requires indication for pre-natal diagnosis which is mandatory as
per the provisions contained in Section 4(2) as except for the purposes
as mentioned in Sections 4(2) and 4(3) no such tests/procedures can be
performed. Thus, what is mandated by the Sections and in Rule 9 has
been mentioned in the Form ‘F’. Procedure carried whether invasive or F
non-invasive has to be obviously mentioned and in case any laboratory
tests have been recommended that is to be mentioned along with the
result. The note attached to Form ‘F’ also contains the representative
list of indications when ultrasound during pregnancy can be performed.
Thus, though the submission that Form ‘F’ is clerical requirement urged
by learned counsel appearing for the petitioner-Society appears at the G
first blush to be worthy examination, but on close scrutiny it is found that
in case any information in the Form is avoided, it will result in the blatant
violation of the provisions of Section 4 and may lead to result which is
prohibited under Section 6. It cannot be said to be a case of clerical
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64 SUPREME COURT REPORTS [2019] 7 S.C.R.

A error as doctor has to fulfil pre-requisites for undertaking the procedure
in case the conditions precedent for undertaking pre-natal diagnostic
test is not specifically mentioned, it would be violative of provisions
contained in Section 4. The Form ‘F’ has to be prepared and signed by
either Gynaecologist/Medical Geneticist / Radiologist / Paediatrician /
Director of the Clinic/Centre/Laboratory. In case the indications and
B
the information are not furnished as provided in the Form ‘F’ it would
amount that condition precedent to undertake the test/procedure is absent.
There is no other barometer except Form ‘F’ to find out why the diagnostic
test/procedure was performed. In case such an important information
beside others is kept vague or missing from the Form, it would defeat
C the very purpose of the Act and the safeguards provided thereunder and
it would become impossible to check violation of provisions of the Act.
It is not the clerical job to fill the form, it is condition precedent for
undertaking test/procedure. With all due regards to the submission
advanced on behalf of petitioner-Society that it is a clerical job, is wholly
without substance but it is a responsible job of the person who is
D
undertaking such a test i.e., the Gynaecologist/ Medical Geneticist/
Radiologist / Paediatrician / Director of the Clinic/Centre/Laboratory to
fill the requisite information. In case he keeps it vague, he knows fully
well that he is violating the provisions of the Act and undertaking the test
without existence of the conditions precedent which are mandatory to
E exist he cannot undertake test/procedure without filling such information
in the form. There is no other way to ensure that test is undertaken on
fulfilment of the prescribed conditions. There is nothing else but the
record which required to be maintained and on the basis of which counter-
check can be made. There is no other barometer or criteria to find out
the violation of the provisions of the Act. Rule 9(4) also requires that
F
every Genetic Clinic to fill Form ‘F’ wherein information with regard to
details of the patient, referral notes with indication and case papers of
the patient are required to be filled and preserved. Form ‘F’ lays down
the indicative list for conducting ultrasonography during pregnancy. Form
‘F’ being technical in nature gives the insight into the reasons for
G conducting ultrasonography and incomplete Form ‘F’ raises the
presumption of doubt against the medical practitioner. In the absence of
Form ‘F’, Appropriate Authorities will have no tool to supervise the usage
of ultrasound machine and shall not be able to regulate the use of the
technique which is the object of the Act.
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FEDERATION OF OBSTETRICS AND GYNECOLOGICAL 65
SOCIETIES OF INDIA v. UNION OF INDIA [ARUN MISHRA, J.]

60. It is rightly contended on behalf of respondents that there are A
different forms for record keeping prescribed under the Act and the
Rules they are important and interlinked, operate in tandem with one
another. These records have to be maintained only when the procedure
or tests are conducted on pregnant woman or when patient may have
been advised to use pre-conception diagnostic tools to conceive a child.
B
It is required for Genetic Counselling Centre advising the procedure/test
with a potential of detecting or determining the sex of the foetus and
referring a person to a Genetic Clinic/Imaging Centre/Ultrasound Clinic
to record the details of Genetic Clinic to which patient is referred at
point 15 of the Form ‘D’ along with the details of the diagnosis and
relevant medical details of the person. Accordingly, Genetic Clinic/ C
Imaging Centre/Ultrasound Clinic conducting the aforesaid referred
procedure has to record the name and address of Genetic Counselling
Centre with the referral slip along with the relevant medical record of
the person on whom procedure/test/technique is conducted. The aforesaid
record keeping procedure shall be followed by Genetic Laboratories
D
also. The scheme of the Act makes it evident that record keeping is
meant to track/monitor and regulate the use of technology that has
potential of sex selection and sex determination. Section 23 is not stand-
alone Section. It is rather used in the enforcement of other provisions of
the Act and violations of Section 23 are often accompanied by violations
of provisions of Sections 4, 5, 6 and 18 of the Act. It is submitted that E
non-maintenance of record in the context of sex determination is not
merely a technical or procedural lapse. It is most significant piece of
evidence for identifying offence and the accused. The inspection of
records is crucial to identify wrong-doers as the crime of sex
determination being a collusive crime given the nexus between the patients
F
and the doctors. Accordingly, punishment is provided in Section 23 for
not maintaining the records.
61. Ms. Pinki Anand, learned Additional Solicitor General has relied
upon a case study on record keeping as an implementation tool of
Prabhakar Hospital in Panipat. In this case Hospital had not sent the
report of IVF done at its Centre to the Appropriate Authority despite G
meeting held on 10.10.2013 and subsequent reminders. After thirteenth
reminder dated 27.11.2014, a show cause notice was issued to the Hospital
on 2.2.2015. The aforesaid case study reads thus:

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66 SUPREME COURT REPORTS [2019] 7 S.C.R.

A “In the case of this Hospital the report of IVF done at the centre
was not sent to the Appropriate Authority despite meetings held
on 10.10.2013 and reminders sent on 6.3.2014, 14.3.2014,
20.3.2014, 21.3.2014, 25.3.2014, 28.3.2014, 31.3.2014 and finally
with a thirteenth reminder on 27.11.2014.
B During inspection following discrepancies were found-
a. In form no.9338, In-vitro Fertilization (IVF) was done on
patient with 2 female children with repeated history of
4 abortions.
b. In form no.9700, woman with 8 female children received
C IVF.
c. In form no.10385, patient Santosh with 7 female children
received IVF but did not fill the section C in F-Form.
Section C in form F pertains to the records of the invasive
procedures which requires records of all diagnostic
D procedures done on men and women which has potential
of sex determination/selection to be recorded.
d. Form no.10389, woman with 3 female children received
IVF, form F Section C not filled in.
e. Form no.9338, woman had 2 female children and 6
E
abortions, and received IVF.
f. Form no.9700, a woman with 8 female children received
IVF.
The hospital was asked why patients who had female children
F underwent IVF as evident from the records. In several of the
cases it is inexplicable why the samples were sent to Delhi and
Bombay. In many F forms many female patients with wrong
phone numbers were mentioned. Similarly in other Form F, patients
with wrong identity proofs, address proof and no identity proofs
were found. In another set of form F wrong Obstetric and
G Abortion history was mentioned as confirmed from the patients.
Difference history on referral slip and Form F was observed.
Signature of patient was found to be missing in the consent form
in many forms. The Signature of the witness Doctor/Counsellor

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FEDERATION OF OBSTETRICS AND GYNECOLOGICAL 67
SOCIETIES OF INDIA v. UNION OF INDIA [ARUN MISHRA, J.]

was missing in all consent forms of IVF patients. Accordingly a A
complaint has been filed in the court.”
(emphasis supplied)
62. It is submitted that the record keeping provide information on
individual patients who could have potentially undergone sex selection/
determination techniques, which is an offence under this Act. If record B
keeping is diluted or exempted from the mandatory requirement of the
Act, the probable involvement in sex determination and sex selection in
the guise of use of diagnostic techniques would continue unbated.
63. The way in which the non-maintenance of record can be used
for violating the provisions of the Act, is apparent from the aforesaid C
example. The aforesaid facts have been mentioned in the show cause
notice that had been issued. In many Form ‘F’ female patients with
wrong phone numbers were mentioned. In other Form ‘F’ patients with
wrong identity, proof of address and no identity proof were found. In
another set of Form ‘F’ wrong obstetric and abortion history was D
mentioned. Signature of patient was also found missing in the consent
forms. Thus, the non-filling of information cannot be termed to be clerical
error, but in case it is kept vague that itself facilitates an offence. It
would definitely a blatant and intentional violation of the provisions of
the Act in order to prevent the mischief which is intended to by
maintenance of record, filling up details of the forms is mandated by E
Sections 4 and 5. The wholesome social legislation would be defeated
in case Form is not filled which is sine qua non toto undertake tests/
procedures if such condition does not exist, no such procedure can be
performed and diluting the provisions would be against the gender justice.
It is in order to create the equality that the provisions have been enacted F
not that unequals are being treated equally. The non-maintenance of
form/not reflecting correct medical condition is offence, not mentioning
it would also be an offence or keeping it vague.
64. It was pointed on behalf of petitioner-Society by filing certain
affidavits of the medical practitioners raising grievances with regard to G
the criminal cases filed against them by the Appropriate Authority on
certain grounds. Acquittals have also been recorded, but they are not
attributable to the deficiency in the Act. The provision of the law cannot
be struck down on the ground of allegation of such exercise of power in

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68 SUPREME COURT REPORTS [2019] 7 S.C.R.

A arbitrary manner, especially when 0.46 million girls were stated to be
missing at birth as a result of sex selective abortions.
65. In Voluntary Health Association of Punjab v. Union of
India, (2016) 10 SCC 265, this Court observed as under:
“46. Now, we shall advert to the prayers in Writ Petition (Civil)
B No. 575 of 2014. The writ petition has been filed by Indian Medical
Association (IMA). It is contended that Sections 3-A, 4, 5, 6, 7,
16, 17, 20, 23, 25, 27 and 30 of the Act and Rules 9(4), 10 & Form
“F” (including foot-note), which being the subject matter of concern
in the instant writ petition, are being misused and wrongly
C interpreted by the authorities concerned thereby causing undue
harassment to the medical professionals all over the country under
the guise of the ‘so-called implementation’. It is also urged that,
implementation of steps and scrutiny of records was started at
large scale all over the country and lot of anomalies were found in
records maintained by doctors throughout the country. It is however
D pertinent to mention here that the majority of the defaults were of
technical nature as they were merely minor and clerical errors
committed occasionally and inadvertently in the filing of Form
“F”. It is also put forth that the Act does not classify the offences
and owing to the liberal and vague terminology used in the Act, it
E is thrown open for misuse by the implementing authorities
concerned and has resulted into taking of cognizance of non-
bailable (punishable by three years) offences against doctors even
in the cases of clerical errors, for instance non-mentioning of N.A.
(Not Applicable) or leaving of any column in the Form “F”
concerned as blank. It is further submitted that the said unfettered
F powers in the hands of implementing authority have resulted into
turning of this welfare legislation into a draconian novel way of
encouraging demands for bribery as well as there is no prior
independent investigation as mandated Under Section 17 of the
Act by these Authorities. It is also set forth that the Act states
G merely that any contravention with any of the provisions of the
Act would be an offence punishable Under Section 23(1) of the
said Act and further all offences under the Act have been made
non-bailable and non-compoundable and the misuse of the same
can only be taken care of by ensuring that the Appropriate Authority
applies its mind to the fact of each case/complaint and only on
H satisfaction of a prima facie case, a complaint be filed rather than
FEDERATION OF OBSTETRICS AND GYNECOLOGICAL 69
SOCIETIES OF INDIA v. UNION OF INDIA [ARUN MISHRA, J.]

launching prosecution mechanically in each case. With these A
averments, it has been prayed for framing appropriate guidelines
and safeguard parameters, providing for classification of offences
as well, so as to prohibit the misuse of the PCPNDT Act during
implementation and to read down this Sections 6, 23, 27 of the
PCPNDT Act. That apart, it has been prayed to add certain
B
provisos/exceptions to Sections 7, 17, 23 and Rule 9 of the Rules.
47. In our considered opinion, whenever there is an abuse of the
process of the law, the individual can always avail the legal remedy.
As we find, neither the validity of the Act nor the Rules has been
specifically assailed in the writ petition. What has been prayed is
to read out certain provisions and to add certain exceptions. We C
are of the convinced view that the averments of the present nature
with such prayers cannot be entertained and, accordingly, we
decline to interfere.”
(emphasis supplied)
D
66. The emphasis of this Court is on the proper maintenance of
records. In Centre for Enquiry into Health and Allied Themes (CEHAT)
v. Union of India, (2001) 5 SCC 577, this Court observed thus:
“3. It is apparent that to a large extent, the PNDT Act is not
implemented by the Central Government or by the State E
Governments. Hence, the petitioners are required to approach
this Court under Article 32 of the Constitution of India……Prima
facie it appears that despite the PNDT Act being enacted by
Parliament five years back, neither the State Governments nor
the Central Government has taken appropriate action for its
implementation. Hence, after considering the respective F
submissions made at the time of hearing of this matter, as suggested
by the learned Attorney-General for India, Mr Soli J. Sorabjee,
the following directions are issued on the basis of various provisions
for the proper implementation of the PNDT Act:
II. Directions to the Central Supervisory Board (CSB) G
1. ***
2. ***
3. CSB shall issue directions to all State/UT appropriate authorities
to furnish quarterly returns to CSB giving a report on the H
70 SUPREME COURT REPORTS [2019] 7 S.C.R.

A implementation and working of the Act. These returns should inter
alia contain specific information about:
(i) survey of bodies specified in Section 3 of the Act;
(ii) registration of bodies specified in Section 3 of the Act;
B (iii) action taken against non-registered bodies operating in violation
of Section 3 of the Act, inclusive of search and seizure of records;
(iv) complaints received by the appropriate authorities under the
Act and action taken pursuant thereto;
(v) number and nature of awareness campaigns conducted and
C results flowing therefrom.….”
67. In Voluntary Health Association of Punjab v. Union of
India, (2013) 4 SCC 1, the Court dealt with the issue of maintenance of
record and issued the following directions:
“9.4. The authorities should ensure also that all genetic counselling
D
centres, genetic laboratories and genetic clinics, infertility clinics,
scan centres etc. using preconception and pre-natal diagnostic
techniques and procedures should maintain all records and all
forms, required to be maintained under the Act and the Rules and
the duplicate copies of the same be sent to the district authorities
E concerned, in accordance with Rule 9(8) of the Rules.
9.6. There will be a direction to all genetic counselling centres,
genetic laboratories, clinics etc. to maintain Forms A, E, H and
other statutory forms provided under the Rules and if these forms
are not properly maintained, appropriate action should be taken
F by the authorities concerned.”
68. The High Court of Gujarat in Suo Motu v. State of Gujarat,
(2009) 1 Gujarat Law Reporter 64, dealt at length with the issue of
proper maintenance of record and observed as under:
“5. A conjoint reading of the above provisions would clearly indicate
G a well-knit legislative scheme for ensuring a strict and vigilant
enforcement of the provisions of the Act directed against female
foeticide and misuse of pre-natal diagnostic techniques….
*** *** ***

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FEDERATION OF OBSTETRICS AND GYNECOLOGICAL 71
SOCIETIES OF INDIA v. UNION OF INDIA [ARUN MISHRA, J.]

7. As seen earlier, the Act and the Rules made thereunder provide A
for an elaborate scheme to ensure proper implementation of the
relevant legal provisions and the possible loopholes in strict and
full compliance are sought to be plugged by detailed provisions
for maintenance and preservation of records. In order to fully
operationalise the restrictions and injunctions contained in the Act
B
in general and in Secs. 4, 5 and 6 in particular, to regulate the use
of pre-natal diagnostic technique, to make the pregnant woman
and the person conducting the pre-natal diagnostic tests and
procedures aware of the legal and other consequences and to
prohibit determination of sex, the Rules prescribe the detailed forms
in which records have to be maintained. Thus, the Rules are made C
and forms are prescribed in aid of the Act and they are so important
for implementation of the Act and for prosecution of the offenders,
that any improper maintenance of such record is itself made
equivalent to violation of the provisions of Secs. 5 and 6, by virtue
of the proviso to sub-sec. (3) of Sec. 4 of the Act. It must, however,
D
be noted that the proviso would apply only in cases of ultra-
sonography conducted on a pregnant woman. And any deficiency
or inaccuracy in the prescribed record would amount to
contravention of the provisions of Secs. 5 and 6 unless and until
contrary is proved by the person conducting such ultra-sonography.
The deeming provision is restricted to the cases of ultra-sonography E
on pregnant women and the person conducting ultra-sonography
is, during the course of trial or other proceeding, entitled to prove
that the provisions of Secs. 5 and 6 were, in fact, not violated.
8. It needs to be noted that improper maintenance of the record
has also consequences other than prosecution for deemed violation F
of Secs. 5 or 6. Section 20 of the Act provides for cancellation or
suspension of registration of Genetic Counselling Centre, Genetic
Laboratory or Genetic Clinic in case of breach of the provisions
of the Act or the Rules. Therefore, inaccuracy or deficiency in
maintaining the prescribed record shall also amount to violation of
the prohibition imposed by Sec. 6 against the Genetic Counselling G
Centre, Genetic Laboratory or Genetic Clinic and expose such
clinic to proceedings under Sec. 20 of the Act. Where, by virtue
of the deeming provisions of the proviso to sub-sec. (3) of Sec. 4,
contravention of the provisions of Secs. 5 or 6 is legally presumed
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72 SUPREME COURT REPORTS [2019] 7 S.C.R.

A and actions are proposed to be taken under Sec. 20, the person
conducting ultra-sonography on a pregnant woman shall also have
to be given an opportunity to prove that the provisions of Secs. 5
or 6 were not violated by him in conducting the procedure. Thus,
the burden shifts on to the person accused of not maintaining the
prescribed record, after any inaccuracy or deficiency is established,
B
and he gets the opportunity to prove that the provisions of Secs. 5
and 6 were not contravened in any respect. Although it is apparently
a heavy burden, it is legal, proper and justified in view of the
importance of the Rules regarding maintenance of record in the
prescribed forms and the likely failure of the Act and its purpose
C if procedural requirements were flouted. The proviso to sub-sec.
(3) of Sec. 4 is crystal clear about the maintenance of the record
in prescribed manner being an independent offence amounting to
violation of Secs. 5 or 6 and, therefore, the complaint need not
necessarily also allege violation of the provisions of Secs. 5 or 6
of the Act. A rebuttable presumption of violation of the provisions
D
of Secs. 5 or 6 will arise on proof of deficiency or inaccuracy in
maintaining the record in the prescribed manner and equivalence
with those provisions would arise for punishment as well as for
disproving their violation by the accused person. That being the
scheme of these provisions, it would be wholly inappropriate to
E quash the complaint leging inaccuracy or deficiency in maintenance
of the prescribed record only on the ground that violation of Secs.
5 or 6 of the Act was not alleged or made out in the complaint. It
would also be improper and premature to expect or allow the
person accused of inaccuracy or deficiency in maintenance of
the relevant record to show or prove that provisions of Secs. 5 or
F
6 were not violated by him, before the deficiency or inaccuracy
were established in Court by the prosecuting agency or before
the authority concerned in other proceedings.”
69. The Act enjoys a presumption of constitutionality. We find no
violation of the constitutional principles. The problem of female foeticide
G is worldwide and the matters of common knowledge, reports and history
are the basis of the legislation, provisions of which cannot be termed to
be illegal or arbitrary in any manner. In Namit Sharma v. Union of
India, (2013) 1 SCC 745, this Court has laid down as under:

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FEDERATION OF OBSTETRICS AND GYNECOLOGICAL 73
SOCIETIES OF INDIA v. UNION OF INDIA [ARUN MISHRA, J.]

“18. The principles for adjudicating the constitutionality of a A
provision have been stated by this Court in its various judgments.
Referring to these judgments and more particularly to Ram Krishna
Dalmia v. Justice S.R. Tendolkar, AIR 1958 SC 538 and Budhan
Choudhry v. State of Bihar, AIR 1955 SC 191, the author Jagdish
Swarup in his book Constitution of India (2nd Edn., 2006) stated
B
the principles to be borne in mind by the courts and detailed them
as follows: (Ram Krishna Dalmia case, AIR pp. 547-48, para 11)
“(a)**
(b) that there is always a presumption in favour of the
constitutionality of an enactment and the burden is upon him who C
attacks it to show that there has been a clear transgression of the
constitutional principles;
(c) that it must be presumed that the legislature understands and
correctly appreciates the need of its own people, that its laws are
directed to problems made manifest by experience and that its D
discriminations are based on adequate grounds;
(d)**
(e) that in order to sustain the presumption of constitutionality the
court may take into consideration matters of common knowledge,
matters of common report, the history of the times and may assume E
every state of facts which can be conceived existing at the time
of legislation; and
(f)**”
70. The petitioner has not shown which of the entry is not
F
mandatory in the form. As the entries are mandatory and sine qua non
for undertaking a test/procedure, the assertion that their fundamental
rights are being violated by not providing requisite information is not
germane and is without substance.
71. The Act intends to prevent mischief of female foeticide and
the declining sex ratio in India. When such is the objective of the Act G
and the Rules and mischief which it seeks to prevent, violation of the
rights under Part III of the Constitution is not found. This Court in
Hamdard Dawakhana v. The Union of India, AIR 1960 SC 554, has
laid down the following principles:
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74 SUPREME COURT REPORTS [2019] 7 S.C.R.

A “8. Therefore, when the constitutionality of an enactment is
challenged on the ground of violation of any of the articles in Part
III of the Constitution, the ascertainment of its true nature and
character becomes necessary i.e. its subject matter, the area in
which it is intended to operate, its purport and intent have to be
determined. In order to do so it is legitimate to take into
B
consideration all the factors such as history of the legislation, the
purpose thereof, the surrounding circumstances and conditions,
the mischief which it intended to suppress, the remedy for the
disease which the legislature resolved to cure and the true reason
for the remedy; Bengal Immunity co. Ltd. v. State of Bihar, 1955-
C 2 SCR 603 at pp. 632, 633 ( (S) AIR 1955 SC 661 at p.674);
R.M.D. Chamarbaughwala v. Union of India, 1957 SCR 930 at p.
936: ( (S) AIR 1957 SC 628 at p.631); Mahant Moti Das v. S.P.
Sahi, AIR 1959 SC 942 at p. 948.
9. Another principle which has to borne in mind in examining the
D constitutionality of a statute is that it must be assumed that the
legislature understands and appreciates the need of the people
and the laws it enacts are directed to problems which are made
manifest by experience and that the elected representatives
assembled in a legislature enact laws which they consider to be
reasonable for the purpose for which they are enacted.
E Presumption is, therefore, in favour of the constitutionality of an
enactment. Charanjit Lal v. Union of India, 1950 SCR 869: (AIR
1951 SC 41); State of Bombay v. F.N. Bulsara, 1951 SCR 682 at
p. 708: (AIR 1951 SC 318 at p. 326); AIR 1959 SC 942.”
72. The mischief sought to be remedied is grave and the effort is
F being made to meet the challenge to prevent the birth of the girl child.
Whether Society should give preference to male child is a matter of
grave concern. The same is violative of Article 39A and ignores the
mandate of Article 51A(e) which casts a duty on citizens to renounce
practices derogatory to the dignity of women. When sex selection is
G prohibited by virtue of provisions of Section 6, the other interwoven
provisions in the Acts to prevent the mischief obviously their
constitutionality is to be upheld.
73. The provisions of MTP Act came up for consideration before
the High Court of Delhi in Raj Bokaria v. Medical Council of India
H (W.P. (C) No.795 of 2010), it observed:
FEDERATION OF OBSTETRICS AND GYNECOLOGICAL 75
SOCIETIES OF INDIA v. UNION OF INDIA [ARUN MISHRA, J.]

“11. On a reading of Section 5 of the MTP Act, it appears to this A
Court that the opinion formed by the medical practitioner to go for
either MTP or pre-term inducement of labour when the pregnancy
is beyond 20 weeks, has necessarily to be in writing and in the
prescribed format. There was no question of there not being any
record whatsoever of the forming of such opinion of the medical
B
practitioner. The argument advanced by Ms. Acharya that in a
case of emergency there may be no time for recording such
opinion cannot explain the failure to record an opinion in the present
case. The facts narrated by the Petitioner herself show that a
very conscious decision was taken of going for a pre-term
inducement of labour sometime around 6th October 2003 when C
the deceased was admitted to Respondent No. 3 hospital. Even
at that time the opinion of the Petitioner should have been
recorded. The pre-term induced delivery took place on 8th October
2003. There was sufficient time, therefore, for the Petitioner to
record her opinion, mandatorily required by Section 5(1). In terms
D
of Rule 3(1) of the Medical Termination of Pregnancy
Regulations, 2003 the medical practitioner has to record her opinion
in Form I. The non-maintenance of records to show the basis on
which an opinion was formed to going in for a pre-term inducement
in a case where the pregnancy is beyond the 20th week is indeed
a very serious lapse. There can be no excuse whatsoever for a E
medical practitioner seeking to defend herself with reference to
Section 5 of the MTP Act not maintaining any record of the
formation of the opinion in terms of Section 5(1) read with the
Regulations of 2003. In the considered view of this Court, the
above factor alone is enough to demonstrate the gross negligence
F
on the part of the Petitioner.”
(emphasis supplied)
74. On behalf of petitioner-Society, reliance has been placed
regarding mens rea on Arun Bhandari v. State of Uttar Pradesh, (2013)
2 SCC 801, wherein the Court observed as under: G
“22. In G.V. Rao v. L.H.V. Prasad,(2000) 3 SCC 693, this Court
has held thus: (SCC pp. 696-97, para 7)
“7. As mentioned above, Section 415 has two parts. While in
the first part, the person must ‘dishonestly’ or ‘fraudulently’
induce the complainant to deliver any property; in the second H
76 SUPREME COURT REPORTS [2019] 7 S.C.R.

A part, the person should intentionally induce the complainant to
do or omit to do a thing. That is to say, in the first part, inducement
must be dishonest or fraudulent. In the second part, the
inducement should be intentional. As observed by this Court in
Jaswantrai Manilal Akhaney v. State of Bombay, AIR 1956
SC 575, a guilty intention is an essential ingredient of the offence
B
of cheating. In order, therefore, to secure conviction of a person
for the offence of cheating, ‘mens rea’ on the part of that
person, must be established. It was also observed in Mahadeo
Prasad v. State of W.B., AIR 1954 SC 724, that in order to
constitute the offence of cheating, the intention to deceive
C should be in existence at the time when the inducement was
offered.”
No sustenance can be drawn from the aforesaid decision as
keeping the information blank is definitely a violation of the Act and very
basic fundamental requisite for undertaking the test. Thus, when form
D has not been filled up, obviously the act is dishonest, fraudulent and can
be termed intentional also. Such case cannot be classified into clerical
error.
75. Reliance has also been placed on the decision of this Court in
Dr. Subhash Kashinath Mahajan v. State of Maharashtra, (2018) 6
E SCC 454, in which this Court observed that the Court has to balance the
right of liberty of the accused guaranteed under Article 21, which could
be taken away only by just, fair and reasonable procedure and to check
abuse of power by police and injustice to a citizen. Thus, some filters
were required to be incorporated to meet the mandate of Articles 14 and
21. The substantive as well as procedural laws must conform to Articles
F 14 and 21. The expression procedure established by law under Article
21 implies just, fair and reasonable procedure. The court to make
purposive interpretation and consider the doctrine of proportionality. This
Court has observed thus:
“12. The learned Amicus submitted that under the scheme of the
G Atrocities Act, several offences may solely depend upon the
version of the complainant which may not be found to be true.
There may not be any other tangible material. One sided version,
before trial, cannot displace the presumption of innocence. Such
version may at times be self-serving and for extraneous reason.
H Jeopardising liberty of a person on an untried unilateral version,
FEDERATION OF OBSTETRICS AND GYNECOLOGICAL 77
SOCIETIES OF INDIA v. UNION OF INDIA [ARUN MISHRA, J.]

without any verification or tangible material, is against the A
fundamental rights guaranteed under the Constitution. Before
liberty of a person is taken away, there has to be fair, reasonable
and just procedure. Referring to Section 41(1)(b) CrPC it was
submitted that arrest could be effected only if there was “credible”
information and only if the police officer had “reason to believe”
B
that the offence had been committed and that such arrest was
necessary. Thus, the power of arrest should be exercised only
after complying with the safeguards intended under Sections 41
and 41-A CrPC. It was submitted that the expression “reason to
believe” in Section 41 CrPC had to be read in the light of Section
26 IPC and judgments interpreting the said expression. The said C
expression was not on a par with suspicion. Reference has been
made in this regard to Joti Parshad v. State of Haryana, 1993
Supp (2) SCC 497, Badan Singh v. State of U.P., 2001 SCC OnLine
All 973, Adri Dharan Das v. State of W.B., (2005) 4 SCC 303,
Tata Chemicals Ltd. v. Commr. of Customs, (2015) 11 SCC 628
D
and Ganga Saran & Sons (P) Ltd. v. CIT, (1981) 3 SCC 143. In
the present context, to balance the right of liberty of the accused
guaranteed under Article 21, which could be taken away only by
just, fair and reasonable procedure and to check abuse of power
by police and injustice to a citizen, exercise of right of arrest was
required to be suitably regulated by way of guidelines by this Court E
under Article 32 read with Article 141 of the Constitution. Some
filters were required to be incorporated to meet the mandate of
Articles 14 and 21 to strengthen the rule of law.
*** *** ***
31. We may, at the outset, observe that jurisdiction of this Court to F
issue appropriate orders or directions for enforcement of
fundamental rights is a basic feature of the Constitution. This Court,
as the ultimate interpreter of the Constitution, has to uphold the
constitutional rights and values. Articles 14, 19 and 21 represent
the foundational values which form the basis of the rule of law. G
Contents of the said rights have to be interpreted in a manner
which enables the citizens to enjoy the said rights. Right to equality
and life and liberty have to be protected against any unreasonable
procedure, even if it is enacted by the legislature. The substantive
as well as procedural laws must conform to Articles 14 and 21.
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78 SUPREME COURT REPORTS [2019] 7 S.C.R.

A Any abrogation of the said rights has to be nullified by this Court
by appropriate orders or directions. Power of the legislature has
to be exercised consistent with the fundamental rights.
Enforcement of a legislation has also to be consistent with the
fundamental rights. Undoubtedly, this Court has jurisdiction to
enforce the fundamental rights of life and liberty against any
B
executive or legislative action. The expression “procedure
established by law” under Article 21 implies just, fair and reasonable
procedure.
*** *** ***
C 53. It is well settled that a statute is to be read in the context of
the background and its object. Instead of literal interpretation, the
court may, in the present context, prefer purposive interpretation
to achieve the object of law. Doctrine of proportionality is well
known for advancing the object of Articles 14 and 21. A procedural
penal provision affecting liberty of citizen must be read consistent
D with the concept of fairness and reasonableness.”
(emphasis supplied)
No sustenance can be drawn from aforesaid decision as the
procedure under the Act is due procedure of law with the safeguards of
E not only of appeals under Section 21 and Rule 19, but there is a State
Supervisory Board in Section 16A. The constitution of multi-member
Appropriate Authority is provided in Section 17(3)(a) and the Advisory
Committee as provided in Section 17(6) which is again also a multi-
member Committee. The Advisory Committee has to aid and advise the
Appropriate Authority in discharge of its functions. Thus, internal
F safeguards are provided in the Act and the Rules which conform to
Articles 14 and 21.
76. Reliance has also been placed on Gian Kaur v. State of
Punjab, (1996) 2 SCC 648, wherein this Court dealt with the provisions
of right to die within the ambit of Article 21. While discussing the
G aforesaid, this Court has observed thus:
“43. This caution even in cases of physician-assisted suicide is
sufficient to indicate that assisted suicides outside that category
have no rational basis to claim exclusion of the fundamental
principles of sanctity of life. The reasons assigned for attacking a
H
FEDERATION OF OBSTETRICS AND GYNECOLOGICAL 79
SOCIETIES OF INDIA v. UNION OF INDIA [ARUN MISHRA, J.]

provision which penalises attempted suicide are not available to A
the abettor of suicide or attempted suicide. Abetment of suicide
or attempted suicide is a distinct offence which is found enacted
even in the law of the countries where attempted suicide is not
made punishable. Section 306 IPC enacts a distinct offence which
can survive independent of Section 309 in the IPC. The learned
B
Attorney General as well as both the learned amicus curiae rightly
supported the constitutional validity of Section 306 IPC.”
(emphasis supplied)
77. In Subramanian Swamy v. Union of India, (2016) 7 SCC
221, it was observed that restriction that goes beyond the requirement of C
public interest cannot be considered as a reasonable restriction and would
be arbitrary. The same reasonableness is not a static concept. Articles
14 and 19 are part of Article 21. Misuse of a provision or its possibility
of abuse is no ground to declare Section 499 IPC as unconstitutional. If
a provision of law is misused or abused, it is for the Legislature to
amend, modify or repeal it. D

This Court has observed thus:
“9.3. Section 499 IPC ex facie infringes free speech and it is a
serious inhibition on the fundamental right conferred by Article
19(1)(a) and hence, cannot be regarded as a reasonable restriction E
in a democratic republic. A restriction that goes beyond the
requirement of public interest cannot be considered as a reasonable
restriction and would be arbitrary. Additionally, when the provision
even goes to the extent of speaking of truth as an offence
punishable with imprisonment, it deserves to be declared
unconstitutional, for it defeats the cherished value as enshrined F
under Article 51-A(b) which is associated with the national struggle
for freedom. The added requirement of the accused having to
prove that the statement made by him was for the public good is
unwarranted and travels beyond the limits of reasonableness
because the words “public good” are quite vague as they do not G
provide any objective standard or norm or guidance as a
consequence the provisions do not meet the test of reasonable
restriction and eventually they have the chilling effect on the
freedom of speech.

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80 SUPREME COURT REPORTS [2019] 7 S.C.R.

A 9.4. “Reasonableness” is not a static concept, and it may vary
from time to time. What is considered reasonable at one point of
time may become arbitrary and unreasonable at a subsequent
point of time. The colonial law has become unreasonable and
arbitrary in independent India which is a sovereign, democratic
republic and it is a well-known concept that provisions once held
B
to be reasonable, become unreasonable with the passage of time.
*** *** ***
10.3. Reasonable restriction is founded on the principle of
reasonableness which is an essential facet of constitutional law
C and one of the structural principles of the Constitution is that if the
restriction invades and infringes the fundamental right in an
excessive manner, such a restriction cannot be treated to have
passed the test of reasonableness. The language employed in
Sections 499 and 500 IPC is clearly demonstrative of infringement
in excess and hence, the provisions cannot be granted the
D protection of Article 19(2) of the Constitution. Freedom of
expression is quintessential to the sustenance of democracy which
requires debate, transparency and criticism and dissemination of
information and the prosecution in criminal law pertaining to
defamation strikes at the very root of democracy, for it disallows
E the people to have their intelligent judgment. The intent of the
criminal law relating to defamation cannot be the lone test to
adjudge the constitutionality of the provisions and it is absolutely
imperative to apply the “effect doctrine” for the purpose of
understanding its impact on the right of freedom of speech and
expression, and if it, in the ultimate eventuality, affects the
F sacrosanct right of freedom, it is ultra vires. The basic concept
of “effect doctrine” would not come in the category of exercise
of power, that is, use or abuse of power but in the compartment of
direct effect and inevitable result of law that abridges the
fundamental right.
G *** *** ***
17.2. Articles 14 and 19 have now been read to be a part of Article
21 and, therefore, any interpretation of freedom of speech under
Article 19(1)(a) which defeats the right to reputation under Article
21 is untenable. The freedom of speech and expression under
H Article 19(1)(a) is not absolute but is subject to constrictions under
FEDERATION OF OBSTETRICS AND GYNECOLOGICAL 81
SOCIETIES OF INDIA v. UNION OF INDIA [ARUN MISHRA, J.]

Article 19(2). Restrictions under Article 19(2) have been imposed A
in the larger interests of the community to strike a proper balance
between the liberty guaranteed and the social interests specified
under Article 19(2). One’s right must be exercised so as not to
come in direct conflict with the right of another citizen. The
argument of the petitioners that the criminal law of defamation
B
cannot be justified by the right to reputation under Article 21
because one fundamental right cannot be abrogated to advance
another, is not sustainable. It is because (i) the right to reputation
is not just embodied in Article 21 but also built in as a restriction
placed in Article 19(2) on the freedom of speech in Article 19(1)(a);
and (ii) the right to reputation is no less important a right than the C
right to freedom of speech.
*** *** ***
18.2. Misuse of a provision or its possibility of abuse is no ground
to declare Section 499 IPC as unconstitutional. If a provision of
law is misused or abused, it is for the legislature to amend, modify D
or repeal it, if deemed necessary. Mere possibility of abuse of a
provision cannot be a ground for declaring a provision procedurally
or substantively unreasonable.
*** *** ***
E
76. The submission is that Sections 499 and 500 IPC are not
confined to defamation of the State or its components but include
defamation of any private person by another private person totally
unconnected with the State. In essence, the proponement is that
the defamation of an individual by another individual can be a civil
wrong but it cannot be made a crime in the name of fundamental F
right as protection of private rights qua private individuals cannot
be conferred the status of fundamental rights. If, argued the learned
counsel, such a pedestal is given, it would be outside the purview
of Part III of the Constitution and run counter to Articles 14, 19
and 21 of the Constitution. It is urged that defamation of a private G
person by another person is unconnected with the fundamental
right conferred in public interest by Article 19(1)(a); and a
fundamental right is enforceable against the State but cannot be
invoked to serve a private interest of an individual. Elucidating the
same, it has been propounded that defamation of a private person
H
82 SUPREME COURT REPORTS [2019] 7 S.C.R.

A by another person cannot be regarded as a “crime” under the
constitutional framework and hence, what is permissible is the
civil wrong and the remedy under the civil law. Section 499 IPC,
which stipulates defamation of a private person by another
individual, has no nexus with the fundamental right conferred under
Article 19(1)(a) of the Constitution, for Article 19(2) is meant to
B
include the public interest and not that of an individual and,
therefore, the said constitutional provision cannot be the source
of criminal defamation. This argument is built up on two grounds:
(i) the common thread that runs through the various grounds
engrafted under Article 19(2) is relatable to the protection of the
C interest of the State and the public in general and the word
“defamation” has to be understood in the said context, and (ii) the
principle of noscitur a sociis, when applied, “defamation” remotely
cannot assume the character of public interest or interest of the
crime inasmuch a crime remotely has nothing to do with the same.
D *** *** ***
90. In R. Sai Bharathi v. J. Jayalalitha, (2004) 2 SCC 9, while
opining about crime, it has been observed as under: (SCC pp. 54-
55, para 56)
“56. Crime is applied to those acts, which are against social
E order and are worthy of serious condemnation. Garafalo, an
eminent criminologist, defined “crime” in terms of immoral and
anti-social acts. He says that:
‘crime is an immoral and harmful act that is regarded as criminal
by public opinion because it is an injury to so much of the
F moral sense as is possessed by a community — a measure
which is indispensable for the adaptation of the individual to
society’.
The authors of the Indian Penal Code stated that:
‘… We cannot admit that a Penal Code is by any means to be
G
considered as a body of ethics, that the legislature ought to
punish acts merely because those acts are immoral, or that,
because an act is not punished at all, it follows that the legislature
considers that act as innocent. Many things which are not
punishable are morally worse than many things which are
H punishable. The man who treats a generous benefactor with
FEDERATION OF OBSTETRICS AND GYNECOLOGICAL 83
SOCIETIES OF INDIA v. UNION OF INDIA [ARUN MISHRA, J.]

gross ingratitude and insolence deserves more severe A
reprehension than the man who aims a blow in passion, or
breaks a window in a frolic; yet we have punishment for assault
and mischief, and none for ingratitude. The rich man who
refuses a mouthful of rice to save a fellow creature from death
may be a far worse man than the starving wretch who snatches
B
and devours the rice; yet we punish the latter for theft, and we
do not punish the former for hard-heartedness.’”
*** *** ***
96. We have referred to this facet only to show that the submission
so astutely canvassed by the learned counsel for the petitioners C
that treating defamation as a criminal offence can have no public
interest and thereby it does not serve any social interest or collective
value is sans substratum. We may hasten to clarify that creation
of an offence may be for some different reason declared
unconstitutional but it cannot be stated that the legislature cannot
have a law to constitute an act or omission done by a person D
against the other as a crime. It depends on the legislative wisdom.
Needless to say, such wisdom has to be in accord with constitutional
wisdom and pass the test of constitutional challenge. If the law
enacted is inconsistent with the constitutional provisions, it is the
duty of the Court to test the law on the touchstone of the E
Constitution.
*** *** ***
122. In State of Madras v. V.G. Row, AIR 1952 SC 196, the
Court has ruled that the test of reasonableness, wherever
prescribed, should be applied to each individual statute impugned F
and no abstract standard, or general pattern of reasonableness
can be laid down as applicable to all cases. The nature of the right
alleged to have been infringed, the underlying purpose of the
restrictions imposed, the extent and urgency of the evil sought to
be remedied thereby, the disproportion of the imposition, the G
prevailing conditions at the time, should all enter into the judicial
verdict.
*** *** ***
127. In Sahara India Real Estate Corpn. Ltd. v. SEBI, (2012)
10 SCC 603, this Court reiterated the principle of social interest in H
84 SUPREME COURT REPORTS [2019] 7 S.C.R.

A the context of Article 19(2) as a facet of reasonable restriction.
In Dwarka Prasad Laxmi Narain v. State of U.P., AIR 1954
SC 224, while deliberating upon “reasonable restriction” observed
that it connotes that the limitation imposed upon a person in
enjoyment of a right should not be arbitrary or of an excessive
nature beyond what is required in the interest of the public. It was
B
also observed that to achieve quality of reasonableness a proper
balance between the freedom guaranteed under Article 19(1)(g)
and the social control permitted by clause (6) of Article 19 has to
be struck.”
(emphasis supplied)
C
When we consider the aforesaid dictum and apply to the Act,
nothing can be more sinister, immoral and anti-social act allowing female
foeticide. In R. Sai Bharathi v. J. Jayalalitha (supra) it has been
observed that crime is against social order, immoral and harmful act. It
has also been observed by this Court that legislature can have a law to
D constitute an act or omission done by a person against the other as a
crime. Considering the evils sought to be remedied it cannot be said
that the imposition in the Act in question is disproportionate. The
restrictions and the provisions of punishment have close nexus with the
object sought to be achieved. It is not possible to term action as merely
E clerical one as that is pre-requisite for the test/procedure and that is
what is intended by the Act, if it is given a go-bye under the guise of
clerical error, the Act would be rendered otiose. Restriction cannot be
said to be excessive and beyond what is required in the public interest,
they cater to the felt need of the society and the complex issues facing
people which the legislature intends to solve.
F
78. In Shreya Singhal v. Union of India, (2015) 5 SCC 1, the
Court dealt with provisions of Section 66-A of Information Technology
Act, 2000. This Court has observed thus:
55. The US Supreme Court has repeatedly held in a series of
G judgments that where no reasonable standards are laid down to
define guilt in a section which creates an offence, and where no
clear guidance is given to either law abiding citizens or to authorities
and courts, a section which creates an offence and which is vague
must be struck down as being arbitrary and unreasonable. Thus,
in Musser v. Utah, 92 L Ed 562 a Utah statute which outlawed
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FEDERATION OF OBSTETRICS AND GYNECOLOGICAL 85
SOCIETIES OF INDIA v. UNION OF INDIA [ARUN MISHRA, J.]

conspiracy to commit acts injurious to public morals was struck A
down.
*** *** ***
59. It was further held that a penal law is void for vagueness if it
fails to define the criminal offence with sufficient definiteness.
Ordinary people should be able to understand what conduct is B
prohibited and what is permitted. Also, those who administer the
law must know what offence has been committed so that arbitrary
and discriminatory enforcement of the law does not take place.
*** *** ***
C
66. In Federal Communications Commission v. Fox Television
Stations Inc., 132 S Ct 2307 it was held: (S Ct p. 2317)
“A fundamental principle in our legal system is that laws which
regulate persons or entities must give fair notice of conduct
that is forbidden or required. See Connally v. General D
Construction Co., 269 US 385, US 391 (“[A] statute which
either forbids or requires the doing of an act in terms so vague
that men of common intelligence must necessarily guess at its
meaning and differ as to its application, violates the first essential
of due process of law”); Papachristou v. Jacksonville, 405
US 156, US 162 {“Living under a rule of law entails various E
suppositions, one of which is that ‘[all persons] are entitled to
be informed as to what the State commands or forbids’”
[quoting Lanzetta v. New Jersey, 306 US 451, US 453 (alteration
in original)]}. This requirement of clarity in regulation is
essential to the protections provided by the Due Process Clause F
of the Fifth Amendment. See United States v. Williams, 553
US 285, US 304. It requires the invalidation of laws that are
impermissibly vague. A conviction or punishment fails to comply
with due process if the statute or regulation under which it is
obtained “fails to provide a person of ordinary intelligence fair
notice of what is prohibited, or is so standardless that it G
authorizes or encourages seriously discriminatory
enforcement.” Ibid. As this Court has explained, a regulation
is not vague because it may at times be difficult to prove an
incriminating fact but rather because it is unclear as to what
fact must be proved. See id., at 306.
H
86 SUPREME COURT REPORTS [2019] 7 S.C.R.

A Even when speech is not at issue, the void for vagueness
doctrine addresses at least two connected but discrete due
process concerns: first, that regulated parties should know what
is required of them so they may act accordingly; second,
precision and guidance are necessary so that those enforcing
the law do not act in an arbitrary or discriminatory way. See
B
Grayned v. Rockford, 33 L Ed 2d 222, US 108-109. When
speech is involved, rigorous adherence to those requirements
is necessary to ensure that ambiguity does not chill protected
speech.””
(emphasis supplied)
C
It is apparent from the aforesaid discussion in Shreya Singhal
(supra) in a case where no reasonable standards are laid down to define
guilt in a section which creates an offence, it would be arbitrary and
unconstitutional. It is absolutely clear that the provisions in the Act in
question cannot be termed as arbitrary or illegal or unreasonable. The
D provisions are not vague. A responsible doctor is supposed to know
before undertaking such pre-natal diagnostic test etc. what is he
undertaking and what his responsibilities are. If he cannot understand
the form he is required to fill and the impact of medical findings and its
consequences which is virtually the pre-requisite for undertaking a test,
E he is not fit to be a member of a noble medical profession. Such culpable
negligence is not warranted from a doctor. It is crystal clear from the
provisions of the Act which can be gathered by a person of ordinary
intelligence and they can have fair notice of what is prohibited and what
omission they should not make. The principles deliberated upon in Shreya
Singhal (supra) rather supports the constitutionality of the Act and the
F Rules framed thereunder.
79. The reliance has also been placed by the petitioner in Nikesh
Tarachand Shah v. Union of India, (2018) 11 SCC 1, in which Court
observed thus:

G “10. On the other hand, the learned Attorney General Shri K.K.
Venugopal impressed upon us the fact that the Parliamentary
legislation qua money laundering is an attempt by Parliament to
get back money which has been siphoned off from the economy.
According to the learned Attorney General, scheduled offences
and offences under Sections 3 and 4 of the 2002 Act have to be
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FEDERATION OF OBSTETRICS AND GYNECOLOGICAL 87
SOCIETIES OF INDIA v. UNION OF INDIA [ARUN MISHRA, J.]

read together and the said Act, therefore, forms a complete code A
which must be looked at by itself. According to the learned Attorney
General, it is well settled that classification which is punishment
centric has been upheld by a catena of judgments and so have the
twin conditions been upheld by various decisions which were
referred to by him. According to him, the expression “any offence”
B
in Section 45(1)(ii) would mean offence of a like nature and not
any offence, which would include a traffic offence as well.
According to the learned Attorney General, Section 45 can easily
be read down to make it constitutional in two ways. First, the
expression “there are reasonable grounds for believing that he is
not guilty of such offence” must be read as the making of a prima C
facie assessment by the court of reasonable guilt. Secondly,
according to the learned Attorney General, in any case the
conditions contained in Section 45(1)(ii) are there in a different
form when bail is granted ordinarily insofar as offences generally
are concerned and he referred to State of U.P. v. Amarmani
D
Tripathi, (2005) 8 SCC 21 for this purpose. According to the learned
Attorney General, if harmoniously construed with the rest of the
Act, Section 45 is unassailable. He relied upon Section 24 of the
Act, which inverts the burden of proof, and strongly relied upon
Gautam Kundu v. Directorate of Enforcement, (2015) 16 SCC 1
and Rohit Tandon v. Directorate of Enforcement, (2018) 11 SCC E
46. In answer to Shri Rohatgi’s argument on the object of the
2012 Amendment Act, according to the learned Attorney General,
it is well settled that where the language of the Act is plain, no
recourse can be taken to the object of the Act and he cited a
number of judgments for this proposition. He referred us to Section
F
106 of the Evidence Act, 1872 and argued that when read with
Section 24 of the 2002 Act, it would be clear that the twin
conditions contained in Section 45 are only in furtherance of the
object of unearthing black money and that we should, therefore,
be very slow to set at liberty persons who are alleged offenders
of the cancer of money laundering. Ultimately, according to the G
learned Attorney General, Section 45 being part of a complete
code must be upheld in order that the 2002 Act work, so that
money that is laundered comes back into the economy and persons
responsible for the same are brought to book.
*** *** *** H
88 SUPREME COURT REPORTS [2019] 7 S.C.R.

A 46. We must not forget that Section 45 is a drastic provision which
turns on its head the presumption of innocence which is
fundamental to a person accused of any offence. Before
application of a section which makes drastic inroads into the
fundamental right of personal liberty guaranteed by Article 21 of
the Constitution of India, we must be doubly sure that such provision
B
furthers a compelling State interest for tackling serious crime.
Absent any such compelling State interest, the indiscriminate
application of the provisions of Section 45 will certainly violate
Article 21 of the Constitution. Provisions akin to Section 45 have
only been upheld on the ground that there is a compelling State
C interest in tackling crimes of an extremely heinous nature.
*** *** ***
49. The learned Attorney General relied heavily on Section 24 of
the 2002 Act to show that the burden of proof in any proceeding
relating to proceeds of crime is upon the person charged with the
D offence of money laundering, and in the case of any other person
i.e. a person not charged with such offence, the court may presume
that such proceeds are involved in money laundering. Section 45
of the Act only speaks of the scheduled offence in Part A of the
Schedule, whereas Section 24 speaks of the offence of money
E laundering, and raises a presumption against the person prosecuted
for the crime of money laundering. This presumption has no
application to the scheduled offence mentioned in Section 45, and
cannot, therefore, advance the case of the Union of India.”
(emphasis supplied)
F Considering the compelling general public interest and gender
justice and declining sex ratio, we have no hesitation in upholding the
validity of the provisions of Section 23(1) of the Act.
80. Reliance has also been placed in P. Rathinam v. Union of India,
(1994) 3 SCC 394, this Court observed thus:
G
48. The aforesaid show that law has many promises to keep
including granting of so much of liberty as would not jeopardise
the interest of another or would affect him adversely, i.e., allowing
of stretching of arm up to that point where the other fellow’s nose

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FEDERATION OF OBSTETRICS AND GYNECOLOGICAL 89
SOCIETIES OF INDIA v. UNION OF INDIA [ARUN MISHRA, J.]

does not begin. For this purpose, law may have “miles to go”. A
Then, law cannot be cruel, which it would be because of what is
being stated later, if persons attempting suicide are treated as
criminals and are prosecuted to get them punished, whereas what
they need is psychiatric treatment, because suicide basically is a
“call for help”, as stated by Dr (Mrs) Dastoor, a Bombay
B
Psychiatrist, who heads an organisation called “Suicide Prevent”.
May it be reminded that a law which is cruel violates Article 21 of
the Constitution, a la, Deena v. Union of India, (1983) 4 SCC
645.
*** *** ***
C
51. A crime presents these characteristics: (1) it is a harm, brought
about by human conduct which the sovereign power in the State
desires to prevent; (2) among the measures of prevention selected
is the threat of punishment; and (3) legal proceedings of a special
kind are employed to decide whether the person accused did in
fact cause the harm, and is, according to law, to be held legally D
punishable for doing so. (See pp. 1 to 5 of Kenny’s Outlines of
Criminal Law, 19th Edn., for the above propositions.)
(emphasis supplied)
81. We find that Act intends not to jeopardise the female foetus. E
As such curtailment of the liberty in cause of such a violation cannot be
said to be disproportionate.
82. Reliance has also been placed on State of Uttar Pradesh v.
Wasif Haider, (2019) 2 SCC 303, in which it has been laid down that an
offence has to be proved beyond reasonable doubt. The relevant portion F
of the decision is extracted hereunder:
“22. In the instant appeals before us, the prosecution has failed to
link the chain of circumstances so as to dispel the cloud of doubt
about the culpability of the respondent-accused. It is a well-settled
principle that a suspicion, however grave it may be cannot take
G
place of proof i.e. there is a long distance between “may be” and
“must be”, which must be traversed by the prosecution to prove
its case beyond reasonable doubt [See Narendra Singh v. State of
M.P., (2004) 10 SCC 699].”

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90 SUPREME COURT REPORTS [2019] 7 S.C.R.

A There is no dispute with the aforesaid proposition, but that is not
the question before us. When trial takes place obviously the commission
of the offence has to be proved as required under the relevant applicable
law.
83. There can be a legislative provision for imposing burden of
B proof in reverse order relating to gender justice. In the light of prevalent
violence against women and children, the Legislature has enacted various
Acts, and amended existing statutes, reversing the traditional burden of
proof. Some examples of reversed burden of proof in statutes include
Sections 29 and 30 of the Protection of Children from Sexual Offences
(POCSO) Act in which there is presumption regarding commission and
C abetment of certain offences under the Act, and presumption of mental
state of the accused respectively. In Sections 113-A and 113-B of the
Indian Evidence Act there is presumption regarding abetment of suicide
and dowry death, and in Section 114-A of the Indian Evidence Act there
is presumption of absence of consent of prosecutrix in offence of rape.
D 84. These provisions are a clear indication of the seriousness with
which crimes against women and children have been viewed by the
Legislature. It is also evident from these provisions that due to the
pervasive nature of these crimes, the Legislature has deemed it fit to
employ a reversed burden of proof in these cases. The presumption in
E the proviso to Section 4(3) of the Act has to be viewed in this light.
85. The Act is a social welfare legislation, which was conceived
in light of the skewed sex-ratio of India and to avoid the consequences
of the same. A skewed sex-ratio is likely to lead to greater incidences of
violence against women and increase in practices of trafficking, ‘bride-
F buying’ etc. The rigorous implementation of the Act is an edifice on
which rests the task of saving the girl child.
86. In view of the aforesaid discussion and in our opinion, no case
is made out to hold that deficiency in maintaining the record mandated
by Sections 5, 6 and the proviso to Section 4(3) cannot be diluted as the
G aforesaid provisions have been incorporated in various columns of the
Form ‘F’ and as already held that it would not be a case clerical mistake
but absence of sine qua non for undertaking a diagnostic test/procedure.
It cannot be said to be a case of clerical or technical lapse. Section
23(1) need not have provided for gradation of offence once offence is
of non-maintenance of the record, maintenance of which itself intend to
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FEDERATION OF OBSTETRICS AND GYNECOLOGICAL 91
SOCIETIES OF INDIA v. UNION OF INDIA [ARUN MISHRA, J.]

prevent female foeticide. It need not have graded offence any further A
difference is so blur it would not be possible to prevent crime. There
need not have been any gradation of offence on the basis of actual
determination of sex and non-maintenance of record as undertaking the
test without the pre-requisites is totally prohibited under the Act. The
non-maintenance of record is very foundation of offence. For first and
B
second offences, gradation has been made which is quite reasonable.
87. Provisions of Section 23(2) has also been attacked on the
ground that suspension on framing the charges should not be on the
basis of clerical mistake, inadvertent clerical lapses. As we found it is
not what is suggested to be clerical or technical lapse nor it can be said
to be inadvertent mistakes as existence of the particular medical condition C
is mandated by Sections 4 and 5 including the age etc. Thus, suspension
on framing of charges cannot be said to be unwarranted. The same
intends to prevent mischief. We are not going into the minutes what can
be treated as a simple clerical mistake that has to be seen case wise and
no categorization can be made of such mistakes, if any, but with respect D
to what is mandatory to be provided in the Form as per provisions of
various sections has to be clearly mentioned, it cannot be kept vague,
obscure or blank as it is necessary for undertaking requisite tests,
investigations and procedures. There are internal safeguards in the Act
under the provisions relating to appeal, the Supervisory Board as well as
the Appropriate Authority, its Advisory Committee and we find that the E
provisions cannot be said to be suffering from any vice as framing of the
charges would mean prima facie case has been found by the Court and
in that case, suspension cannot be said to be unwarranted.
88. It was also prayed that action should be taken under Section
20 after show cause notice and reasonable opportunity of being heard. F
There is already a provision in Section 20(1) to issue a show cause and
in Section 20(2) contains the provision as to reasonable opportunity of
being heard. Thus, we find no infirmity in the aforesaid provision.
89. There also the Appropriate Authority to consider each case
on merits with the help of Advisory Body which has legal expert. The G
Advisory Committee consists of one legal expert which has to aid and
advise the Appropriate Authority as provided in Sections 16 and 17(5)(6).
Thus, the submission that legal advice should be taken before prosecution,
in view of the provisions, has no legs to stand.
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92 SUPREME COURT REPORTS [2019] 7 S.C.R.

A 90. It was also contended that action of seizure of ultrasonography
machine and sealing the premises cannot be said to be appropriate. The
submission is too tenuous and liable to be rejected. Section 30 of the Act
enumerates the power of search and seizure and Rules 11 and 12 of the
Rules provide for the power of the Appropriate Authority to seal
equipment, inspect premises and conduct search and seizure. It was
B
pointed out by the respondents that a “Standard Operational Procedure”,
detailing the procedure for search and seizure has been developed by
the Ministry of Health and Family Welfare. Further, regular training of
Appropriate Authorities is being carried out at both the National and
State level. All the States have also been directed to develop online MIS
C for monitoring the implementation of the Act. It is settled proposition
that when offence is found to be committed, there can be seizure and
sealing of the premises and equipment during trial as no license can be
given to go on committing the offence. Such provisions of seizure/sealing,
pending trial are to be found invariably in various penal legislations. The
impugned provisions contained in the Act constitute reasonable restrictions
D
to carry on any profession which cannot be said to be violative of Right
to Equality enshrined under Article 14 or right to practise any profession
under Article 19(1)(g). Considering the Fundamental Duties under Article
51A(e) and considering that female foeticide is most inhumane act and
results in reduction in sex ratio, such provisions cannot be said to be
E illegal and arbitrary in any manner besides there are various safeguards
provided in the Act to prevent arbitrary actions as discussed above.
91. In light of the nature of offences which necessitated the
enactment of the Act and the grave consequences that would ensue
otherwise, suspension of registration under Section 23(2) of the Act serves
F as a deterrent. The individual cases cited by the petitioner-Society cannot
be a ground for passing blanket directions, and the individuals have
remedies under the law which they can avail. Moreover, the concept of
double jeopardy would have no application here, as it provides that a
person shall not be convicted of the same offence twice, which is
demonstrably not the case here. Suspension is a step-in-aid to further
G the intendment of act. It cannot be said to be double punishment. In
case an employee is convicted for an offence, he cannot continue in
service which can be termed to be double jeopardy.
92. Non maintenance of record is spring board for commission of
offence of foeticide, not just a clerical error. In order to effectively
H implement the various provisions of the Act, the detailed forms in which
FEDERATION OF OBSTETRICS AND GYNECOLOGICAL 93
SOCIETIES OF INDIA v. UNION OF INDIA [ARUN MISHRA, J.]

records have to be maintained have been provided for by the Rules. A
These Rules are necessary for the implementation of the Act and improper
maintenance of such record amounts to violation of provisions of Sections
5 and 6 of the Act, by virtue of proviso to Section 4(3) of the Act. In
addition, any breach of the provisions of the Act or its Rules would
attract cancellation or suspension of registration of Genetic Counselling
B
Centre, Genetic Laboratory or Genetic Clinic, by the Appropriate
Authority as provided under Section 20 of the Act.
93. There is no substance in the submission that provision of Section
4(3) be read down. By virtue of the proviso to Section 4(3), a person
conducting ultrasonography on a pregnant woman, is required to keep
complete record of the same in the prescribed manner and any deficiency C
or inaccuracy in the same amounts to contravention of Section 5 or
Section 6 of the Act, unless the contrary is proved by the person
conducting the said ultrasonography. The aforementioned proviso to
Section 4(3) reflects the importance of records in such cases, as they
are often the only source to ensure that an establishment is not engaged D
in sex-determination.
94. Section 23 of the Act, which provides for penalties of offences,
acts in aid of the other Sections of the Act is quite reasonable. It provides
for punishment for any medical geneticist, gynecologist, registered medical
practitioner or a person who owns a Genetic Counselling Centre, a Genetic E
Clinic or a Genetic Laboratory, and renders his professional or technical
services to or at said place, whether on honorarium basis or otherwise
and contravenes any provisions of the Act, or the Rules under it.
95. Therefore, dilution of the provisions of the Act or the Rules
would only defeat the purpose of the Act to prevent female foeticide, F
and relegate the right to life of the girl child under Article 21 of the
Constitution, to a mere formality.
96. In view of the above, no case is made out for striking down
the proviso to Section 4(3), provisions of Sections 23(1), 23(2) or to read
down Section 20 or 30 of the Act. Complete contents of Form ‘F’ are G
held to be mandatory. Thus, the writ petition is dismissed. No costs.

Ankit Gyan Writ petition dismissed.

H