-
7/25/2019 Strict action against errant docs, tab on diagnostic centres must to curb female foeticide: panel to SC
1/29
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) NO. 349/2006
IN THE MATTER OF:
VOLUNTARY HEALTH ASSOCIATIONOF PUNJAB PETITIONER
VERSUS
UNION OF INDIA & ORS. RESPONDENTS
SUGGESTIONS BY MR.SANJAY PARIKH,ADVOCATE ON BEHALF OF DR. SABUMATHEW GEORGE (INTERVENOR) ANDVARSHA DESHPANDE(INTERVENOR), BOTH
MEMBERS OF NATIONAL INSPECTION ANDMONITORING COMMITTEE(NIMC)
1. Non-implementation of the directions given inCEHAT & Ors. & Union of India & Ors., 2003(8) SCC398
These written submissions have been filed pursuant to the
order dated 17.11.2015 by this Honble Court. It may be
stated at the outset that this Honble Court has been
sincerely concerned about effective implementation of the
provisions of the PC-PNDT Act and Rules, 1994 (as
amended in 2002). In Writ Petition (C) 301/2000, filed by
Centre for Enquiry into Health and Allied Themes (CEHAT,
MASUM and Dr.Sabu George), this Honble Court had given
several orders from 4 May, 2001 onwards culminating into
-
7/25/2019 Strict action against errant docs, tab on diagnostic centres must to curb female foeticide: panel to SC
2/29
the final order dated 10.09.2003 reported in CEHAT & Ors.
& Union of India & Ors., 2003(8) SCC 398. Along with the
main judgment, orders dated 04.05.2001, 07.11.2001,
11.12.2001 and 31.03.2003 were appended.
Following directions given in Para 6 of the said judgment
have either not been implemented or there is lack of
effective implementation.:
6(a) For effective implementation of the Act, informationshould be published by way of advertisements as well as onelectronic media. This process should be continued till thereis awareness in the public that there should not be anydiscrimination between male and female child.
With regard to the above direction, it is submitted that the
advertisements and other publications made in the
newspapers as well as in electronic media at present are
not effective and adequate, in as much as they lack in
conveying the spirit of the PC-PNDT Act and that elimination
of discrimination against the girl child should be the prime
objective. It is, therefore, submitted that the
advertisements and other publications in the
newspapers/magazines/electronic media, etc. should be
consistent with the provisions of the PC-PNDT Act
throughout all the States/UTs and that the material for such
publications/advertisements should be prepared by the
Ministry of Health and Family Welfare (MoHFW) in
consultation with the Central Supervisory Board and
-
7/25/2019 Strict action against errant docs, tab on diagnostic centres must to curb female foeticide: panel to SC
3/29
members of those civil societies who are consistently
working in this field so that the dissemination of information
focusses on the elimination of discrimination and effective
implementation of the Act. All national and state initiative
such as Beti Bachao-Beti Padao should concentrate on
implementation of PC-PNDT Act.
6(b) Quarterly reports by the appropriate authority, whichare submitted to the Supervisory Board should beconsolidated and published annually for information of thepublic at large.
This direction has not been implemented. For effective
implementation of the said direction, quarterly reports by
Appropriate Authorities should be submitted to the
respective State Supervisory Boards and the State
Supervisory Boards, after consolidating them and taking
necessary action, should submit it to the Central
Supervisory Board along with the Action Taken Report. The
Central Supervisory Board should publish the said report
annually, after issuing such directions as may be required
generally for all the States/UTs and also specifically for a
State/UT. This Annual Report should contain all the
information which provisions of the PC-PNDT Act and Rules
require.
6(d) The National Inspection and Monitoring Committeeconstituted by the Central Government for conductingperiodic inspection shall continue to function till the Act iseffectively implemented. The reports of this Committee be
-
7/25/2019 Strict action against errant docs, tab on diagnostic centres must to curb female foeticide: panel to SC
4/29
placed before the Central Supervisory Board and StateSupervisory Boards for any further action.
This Honble Court constituted the NIMC as it would give
and independent view to the Union Government and to this
Honble Court after visiting States/UTs. However, the NIMC
was not constituted consistently after the 2003 judgment.
At times, no NIMC existed for several years. The NIMC has
been submitting its reports to the Central Government but
there has largely been non-compliance of its
suggestions/recommendations. This is, one, among several
reasons why implementation of the Act continues to be
ineffective. It may be pointed out that the Applicants are
members of the NIMC and are seriously concerned about
proper consideration and action taken based on the reports
submitted by them to the Centre on particular States/UTs.
The following suggestions are, therefore, made to make the
monitoring by NIMC effective:
I. NIMC should consist of representatives of civil
societies, representatives of the Union of India
from Women and Child Development Ministry,
Health and Family Welfare Ministry as well as the
Law and Justice Ministry.
II. There should be a minimum of 2 visits of NIMC
to each State/UT annually.
-
7/25/2019 Strict action against errant docs, tab on diagnostic centres must to curb female foeticide: panel to SC
5/29
III. The NIMC should submit its report to the
Ministry of Health and Family Welfare. The
MoHFW shall send the NIMC report to the State
Supervisory Boards, as well as the concerned
Health Departments. The concerned SSB will
submit Action taken Report to the MOHFW as
well as to the CSB. The MOHFW and CSB will
issue such directions as may be required in
relation to the concerned State/UT.
IV. The National inspection and Monitoring
Committee has faced several difficulties during
their visits to different states. In future, the Chief
Secretaries of respective states, which the NIMC
proposes to visit, should be informed in advance
regarding the visit so that appropriate security
arrangements are made for the members of
NIMC in order to discharge their functions. There
have been several instances of NIMC being
prevented from inspection of clinic in recent
years for example, in Bihar, UP, Jharkhand, etc.
V. The nominees of agencies like IRA / FOGSI
should not be made ex-officio members of NIMC
because these medical associations have not
-
7/25/2019 Strict action against errant docs, tab on diagnostic centres must to curb female foeticide: panel to SC
6/29
been fully co-operative in implementation of the
PC-PNDT Act in the past; the IRIA has
repeatedly challenged the constitutional validity
of several beneficial sections of the PCPNDT Act.
VI. The State/UT and District/Sub-District
appropriate authorities should be directed to
ensure that clinics/centres, etc. under the Act
are opened, if required, so that the inspections /
surprise visit of the NIMC are not rendered futile
due to premises of such clinics/centres proposed
to be inspected being kept closed.
VII. All States/UTs should be directed to file Action
Taken Reports to this Honble Court on all NIMC
recommendatons since the last judgment of this
Honble Court in March 2013.
2. Clarification of the directions given in judgment
dated 04.05.2013, Voluntary Health Association of
India v. Union of India,2013 (4) SCC 1
This Hon'ble Court by the judgment dated 4 March, 2013, in
Voluntary Health Association of India v. Union of India,
2013(4) SCC 1 has given several directions for effective
implementation of the Act/Rules. After going through these
directions carefully, as well as the provisions of the PC-
-
7/25/2019 Strict action against errant docs, tab on diagnostic centres must to curb female foeticide: panel to SC
7/29
PNDT Act & Rules, the following clarifications and
suggestions are required.
For convenience, the following chart has been prepared
showing the directions given in the judgment and the
clarifications which are prayed for:
-
7/25/2019 Strict action against errant docs, tab on diagnostic centres must to curb female foeticide: panel to SC
8/29
No
1.
Direction
The Central Supervisory
Board and the State and
Union Territories
Supervisory Boards,
constituted under Sections7
and 16A of PC&PNDT Act,
would meet at least once in
six months, so as to
supervise and oversee how
effective is the
implementation of the
PC&PNDT Act.
Clarification Sought
Under Section 9(1) proviso,
The Board (Central
Supervisory Board) shall
meet at least once in 6
months. However, the State
Supervisory Board (SSB),
constituted under 16A,
should meet at least once in
4 months, as per 16-A(3).
It may be clarified that the
Statute requires SSB to meet
once in 4 months to prepare
consolidated reports under
Section 16A(1)(iv) and the
decisions taken therein are
submitted before the CSB
which meets once in 6
months.
2 The State Advisory
Committees and District
Advisory Committees should
gather information relating
to the
breach of the provisions of
the PC&PNDT Act and the
Rules and take steps to
seize records, seal machines
and institute legal
proceedings, if they notice
violation of the provisions of
the PN&PNDT Act.
Under Section 17 read with
Section 17(A) of the Act,
powers have been given to
the Appropriate Authority for
summoning of any person,
production of any document
or material object and issuing
search warrant and not to
the State and District
Advisory Committee. Section
17(4)(c) gives powers to the
Appropriate Authority to
investigate complaints to the
-
7/25/2019 Strict action against errant docs, tab on diagnostic centres must to curb female foeticide: panel to SC
9/29
breach of the provisions of
the Act or the Rules made
there under and takeimmediate action as well as
Section 17(4)(g) to
supervise the implementation
of the provisions of the Act
and Rules. Section 30 gives
powers to the AppropriateAuthority to search and seize
records; further Rule 11
gives powers for inspections
and Rule 12 powers for
search and seizure. Nowhere
in the Act or Rules thesepowers are given to the
State/District Advisory
Committees.
3. The Committees mentioned
above should report the
details of the chargesframed and the conviction
of the persons who have
committed the offence, to
the State Medical Councils
for proper action, including
suspension of the
registration of the unit and
cancellation of license to
practice.
The word Committees need
to be replaced by the word
Appropriate Authority asunder Section 23(2) of the
Act it is the Appropriate
Authority which has been
given power to report to the
State Medical Council. Under
Section 23(2) The name of
the registered medical
practitioner shall be reported
by the Appropriate Authority
to the State Medical Council
concerned...
-
7/25/2019 Strict action against errant docs, tab on diagnostic centres must to curb female foeticide: panel to SC
10/29
4. The authorities should
ensure also that all Genetic
Counseling Centers, GeneticLaboratories and Genetic
Clinics, Infertility Clinics,
Scan Centers etc. using
preconception and pre-natal
diagnostic techniques and
procedures should maintainall 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
concerned DistrictAuthorities, in accordance
with Rule 9(8) of the
Rules.
The word Authorities and
District Authorities need to
be replaced by the wordAppropriate authority.
5. States and District Advisory
Boards should ensure that
all manufacturers andsellers of ultra-sonography
machines do not sell any
machine to any unregistered
centre, as provided under
Rule 3-A and disclose, on a
quarterly basis, to the
concerned State/Union
Territory and Central
Government, a list of
persons to whom the
machines have been sold, in
The relevant provisions of the
Act and Rules are: Section 3-
B and Rule 3-A(2). Rule 3-A(3) provides for submission
of affidavits by the Genetic
Counselling Centres, Genetic
Laboratories and Genetic
Clinics, Ultrasound Clinic and
Imaging Centres or any other
body or person registered
under the Act for purchasing
or getting authorization to the
manufacturer/importer/dealer
,etc.
-
7/25/2019 Strict action against errant docs, tab on diagnostic centres must to curb female foeticide: panel to SC
11/29
accordance with Rule 3-A(2)
of the Act.
The Directions may be
appropriately clarified by
giving responsibility ofensuring the implementation
of these specific provisions to
the Central Government and
concerned State/UT
Appropriate Authority and not
to State and District AdvisoryBoards as per Rule 3-A(2).
6. There will be a direction to
all Genetic Counselling
Centers, GeneticLaboratories, 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 by the authorities
concerned.
The Forms to be maintained
by the Genetic Counselling
Centers, Genetic Laboratoriesand Genetic Clinics, Infertility
Clinics, Scan Centres under
Section 4(3 proviso) read with
Section 29, and Rules
9(2),(3),(4),(5) and Rule 10
are Forms D,E,F,G & H. Andtherefore in place of A,E,H
the Forms D, E, F, G & H to
be substituted. There is a
need to give further direction
to every Genetic Counseling
Centers, Genetic Laboratoriesand Genetic Clinics, Infertility
Clinics, Scan Centres that
they shall maintain a register
as provided under Rule 9(1).
-
7/25/2019 Strict action against errant docs, tab on diagnostic centres must to curb female foeticide: panel to SC
12/29
With regard to Direction 8 and 9 in the order dated
March 4, 2013 the following suggestions are given:
No. Directions Suggestions
9. Steps should be taken by
the State Governments and
the Union Territories to
In addition to educating the
people, the training of
Appropriate Authorities &
7. Steps should also be taken
by the State Government
and the authorities under
the Act for mapping of all
registered and unregistered
ultra-sonography clinics, in
three months time.
No suggestion.
8. The authorities concerned
should take steps to seize
the machines which have
been used illegally and
contrary to the provisions of
the Act and the Rul
es
thereunder and the seized
machines can also be
confiscated under the
provisions of the Code of
Criminal Procedure and be
sold, in accordance with
law.
The word Authorities should
read as Appropriate
Authority.
-
7/25/2019 Strict action against errant docs, tab on diagnostic centres must to curb female foeticide: panel to SC
13/29
educate the people of the
necessity of implementing
the provisions of the Act byconducting workshops as
well as awareness camps at
the State and District
levels.
Advisory committee members,
public prosecutors, judicial
officers at all levels isrequired. The directions may
be given to State and National
Judicial Academies, Union and
State/UT Health Departments
and Union and State/UT Law
& Judiciary as well asDepartments of Prosecution.
10. Special Cell be constituted
by the State Governments
and the Union Territories to
monitor the progress ofvarious cases pending in
the Courts under the Act
and take steps for their
early disposal.
The information collected
regarding pending/disposed of
cases by the State
Governments/Union Territoriesbe provided to the MoHFW as
well as the CSB for such
measures as may be required
for effective implementation of
the Act/Rules.
3. Registration of Births
1.
There should be a uniform implementation of registration of
births all over the Country, as provided under the
Registration of Birth and Death Act, 1969. The data
collected by the States/UTs should be provided to the State
Supervisory Boards, who should share it with Central
Supervisory Boards. The State of Kerala provides details of
all births and other vital information on a website known as
-
7/25/2019 Strict action against errant docs, tab on diagnostic centres must to curb female foeticide: panel to SC
14/29
a Sevana website (cr.lsgkerala.gov.in) which can be
accessed by all. This was pointed out to this Honble Court
and is recorded in the order dated 16.09.2014.
8. The Sevana website, accessed at
www.cr.lsgkerala.gov.in maintained by the Kerala
Government (Local self government Department)
provides details of all births and other vital statis
tics
which are electronically registered by the Local
Governments in the registration units. Kerala was the
first State in India to have a centralized database of
civil registration records from all registration units.
This initiative of the Kerala Government has received
wide acclaim. Thereby from the website we get
information regarding the number of boys and girls
being born.
Public display of birth data sex-wise provides
transparency about the performance of each State,
District and sub-District in respect to the actual births
and therefore, helps to highlight any potential mal-
practice of sex determination. This public knowledge
may dissuade both the unethical medical
professionals and the general public in the long run
from committing crimes of sex determination and sex
selective abortion. As no community would like to be
-
7/25/2019 Strict action against errant docs, tab on diagnostic centres must to curb female foeticide: panel to SC
15/29
stigmatized in the public domain year after year for
crimes of sex determination or sex selection
committed secretly.
9. That below are details of some of the information
displayed on the website:
i) The birth information is summarised for the State.
And for each unit, District, Municipality, Corporation
or Gram Panchayat level data can be obtained by
clicking the map.
ii) Graphs provide a visual comparison of boys and
girls born over the past three years.
iii) This is available at the State, District and other
local body levels.
This Honble Court by order dated 13.01.2015 directed:
At this juncture, it is submitted by Mr. Sanjay
Parekh, learned counsel appearing for the applicant
that in certain cases, the figures that are collected as
regards the birth of children are not put on the web
site . It is directed that the said figures/data shall be
put on the Government website and the said website
shall be adequately publicized.
-
7/25/2019 Strict action against errant docs, tab on diagnostic centres must to curb female foeticide: panel to SC
16/29
There should be a direction to all the States/UTs to
follow the Kerala model and put the data on the
respective Governments websites.
4. Training / Orientation / Skill Building
I. There should be periodic orientation programmes /
trainings for appropriate authorities regarding
procedures like search and seizure and other
aspects
relating to investigation and collection of evidence.
II. Trainings about PCPNDT Act must be organised for
other authorities such as public prosecutors, lawyers,
judges, police personnel and the media
5. Prosecution
I. The Director of Public Prosecution of each State
should participate in the State Supervisory Board
Meetings to ensure that there is convergence of
thought process between Advisory Agencies and the
implementation agencies.
II. There has to be coordination between Chief Public
Prosecutor and District Appropriate Authorities on
individual cases. It would be in the fitness of things if
there is a Nodal Officer appointed for every district
who can act as a Liaison Officer between the
appropriate authority and the public prosecutors. The
-
7/25/2019 Strict action against errant docs, tab on diagnostic centres must to curb female foeticide: panel to SC
17/29
Nodal Officer apart from sharing of information can
also monitor court cases on monthly basis. Relevant
extracts from an NIMC report of a special visit to Bihar
ordered by this Honble Court in 2015 is quoted
below:
Our visit to four Districts revealed that the
information submitted is incomplete for threeDistricts (excepting Patna) in the Bihar State
Affidavits. Too often cases are filed by District
authorities and forgotten. There does not
appear to be follow up of all the pending cases
in the Court with the exception of Patna
District.
III. There should not be a frequent change of the public
prosecutors (in Delhi it has been found that one of the
major problems resulting in delay in cases has been
frequent change of additional public prosecutors).
IV. Appointment of Special Public Prosecutor for serious
and sensitive cases under the PC-PNDT Act.
V. Appropriate Authorities take action Under Section 20
of the PCPNDT Act for suspension and even
cancellation of registration but do not follow up by
taking action U/s.23. The Appropriate Authorities
should be directed to file cases whenever any
violation occurs and not soft peddle by mere
-
7/25/2019 Strict action against errant docs, tab on diagnostic centres must to curb female foeticide: panel to SC
18/29
suspending or cancelling registration. Relevant
extracts from an NIMC report of a special visit to
Punjab in 2015 which highlights the inaction is quoted
below:
However, we are disappointed that despite
several hundred notices and about 100+
suspensions that there are so few cases filed.
For instance in the past three years (2013-14,
2014-15 and 2015-16 till June) only a total of
8 cases were launched whereas at least sixty
thousand medical crimes take place every year
in Punjab. Thus there is practically no
deterrence in the State against medical crimes
of sex determination/sex selection. The
disturbing practice is that 42 cancellations
have taken place in the above period. Thus
these violators go scot free from the criminal
law because the provisions of PC-PNDT Act
are not followed in the State! Another reason
for unethical medical professionals to have
contempt for law. It will be interesting to find
out how many of these affected Doctors and
clinics have subsequently resurrected to be
registered again to do prenatal diagnostic
techniques.
6. Justice Delivery System
I. Each district should have designated Fast Track Court
headed by a Judicial Magistrate First Class to
exclusively deal with PCPNDT cases.
-
7/25/2019 Strict action against errant docs, tab on diagnostic centres must to curb female foeticide: panel to SC
19/29
II. In Rajasthan out of 67 cases of conviction, in 52 cases
the accused have been set free under provision for
good conduct by mere admonition and not awarded
any punishment. In two cases it has been found that
the accused has been detained till the rising of the
court and was only asked to pay a penalty of
Rs.1,000/- as fine. The above reflects as to how the
provisions of the Act are implemented.
7. Inspections / Monitoring
I. There must be Inspections by
Appropriate Authority of
all registered centers, unregistered centers, operating
ultra sound machines as per Rule 18-A(8) of the
PCPNDT Act as it has been found that regular
inspections of centers has led to detection of
illegalities and consequent filing of cases.
II. A common uniform inspection format that objectively
capture violations has to be developed for each state
(Infact in Delhi the state Supervisory Board has
prepared a common format and shared with all
districts along with dos and donts of inspection).
8. Informer Scheme
-
7/25/2019 Strict action against errant docs, tab on diagnostic centres must to curb female foeticide: panel to SC
20/29
I. Awards and rewards to be given to the General Public
for providing information to the appropriate
authorities. In M.P., an award of Rs.50,000/- in cash
is given to members of the public, if a challan is
issued on the basis of the information provided and
another Rs.50,000/- on conviction. In Haryana, there
is an informer scheme wherein 13 people were
awarded money in the last two years for providing
information to the appropriate authorities. It should
be ensured that the amount is not given to the
informers until final disposal of the matters or until
conviction is done so that the accused cannot use that
as a defence by insinuating that informers have given
false information for the money. It is also preferable
that the award or the name of the informer are not
made public.
9. Awareness Programmes
Awareness programmes in rural areas should be done
with aid of Aaganwadi workers or Asha as they are
the ones who are regularly in touch with rural women
and children giving information about the health and
nutrition etc. Awareness should be created in the
-
7/25/2019 Strict action against errant docs, tab on diagnostic centres must to curb female foeticide: panel to SC
21/29
public domain about the offences and penalties under
the PC-PNDT Act.
10. Legal Issues
I. Implementation of Rule 18-A(inserted with effect from
26.02.2014). A copy of Rule 18-A is enclosed.
This rule has been inserted after thoroughly considering the
existing provisions of the Act/Rules and the
difficulties
which were encountered and experience gained during the
process of implementation of law. It is submitted that if the
rule is followed in its letter and spirit, it will go a long way in
the effective implementation of the provisions of the Act,
which will have a positive impact on reducing the
occurrence of sex determination and reducing sex-selective
abortion. It is also submitted that as per the contents of
Rule 18-A(3)(iii), cognizance should be taken in 24 hours
and the investigations should be completed within 48 hours
of receipt of the complaint.
II. The violation of Section 4(3) proviso is not linked with
offences and penalties provided under Section 23 and 24. It
is invariably linked with Section 25 which provides only for
fine. In gross violations of PC-PNDT Act, only fine is
awarded by the Courts. This aspect is required to be
addressed and clarified.
-
7/25/2019 Strict action against errant docs, tab on diagnostic centres must to curb female foeticide: panel to SC
22/29
III. Even when the Appropriate Authorities find an offence
under Section 4(3) proviso or under Section 5 or 6 has been
committed, they do not take composite action under
Section 20 which relates to cancellation or suspension of
registration along with prosecution under Section 22, 23, 25
or 26, as the case may be. It is submitted that if an offence
is committed, the Appropriate Authority should take action
under Section 20 for suspension or cancellation of
registration and proceed with prosecution of the offender by
conducting investigation, i.e., search, seizure and
inspection. The complaint filed by the Appropriate Authority
before the Court should contain all the papers of
investigation- search, seizure, panchnama,
suspension/cancellation, show cause notice, if given,
inspection report, and all the other necessary documents.
IV. The seizure of ultrasound machine under Section 30
read with Rule 12 should be treated as the seizure of the
material object. It should be confiscated as provided
under Rule 11(2) and further action should be taken as per
Section 23 of the Act. The seized ultrasonography machine
should be kept as part of court records as provided under
Section on 29 until final disposal of the proceedings. The
final disposal of the proceedings should include appeal as
-
7/25/2019 Strict action against errant docs, tab on diagnostic centres must to curb female foeticide: panel to SC
23/29
well as proceedings under Special Leave before this Honble
Court.
V. Section 27 of the Act makes every offence under this Act
cognizable, non-bailable and Section 28 states that no court
shall take cognizance of any offence under this Act except
on a complaint made, interalia, by an appropriate authority
concerned. In several States, the police have acted under
section 27 of the Act and conducted investigations and in
some cases registered FIRs. These FIRs have then gone on
to be quashed on the grounds that police have no powers
to act under this Act. It is suggested that all investigations
done by the police could be saved if a complaint is finally
made by the appropriate authority as required U/s.28. In
fact Rule 18 A (iii) (iv) of the PCPNDT Act states that as far
as possible the police should not be involved in investigation
of cases as the cases are tried as complaint cases under
Cr.P.C. Therefore, there is no bar in exceptional cases for
the police to be involved in investigation. This suggestion
would aid in the effective implementation of the Act keeping
in view the extremely difficult objective sought to be
achieved.
VI. Under Section 28 which relates to cognisance of offences,
Appropriate Authority has been authorized to file a
-
7/25/2019 Strict action against errant docs, tab on diagnostic centres must to curb female foeticide: panel to SC
24/29
complaint. The legislature in its wisdom has also provided
that a person which includes a social organization can also
file a complaint after giving a notice of not less than 15
days to the Appropriate Authority. In order to ensure that a
person who has committed heinous offence under the Act
does not go unpunished, Section 28(3) provides that a
person/social organization which has given notice to the AA
be provided copies of all the relevant documents. However,
Section 28(3) uses the term may. The Applicants submit
that the word may should be read as shall as such
interpretation will be inconsistent with Section 17(3), as well
as directions given under Section 6(e) of CEHAT & Ors v.
Union of India & Ors.
VII. Under Section 23(2), if the charges are framed, the case of
such registered medical practitioner has to be reported by
the AA to the State Medical Council. It is mandatory that on
framing of charges, the registration of the accused doctor is
put under suspension and after conviction, his name is
removed from the register for 5 years for the first offence
and permanently for the subsequent offences. Inspite of
charges being framed, the cases are not reported by the
Appropriate Authority to the State Medical Council and the
State Medical Council does not suspend the licenses inspite
of framing of charges. Even when a case is reported by the
-
7/25/2019 Strict action against errant docs, tab on diagnostic centres must to curb female foeticide: panel to SC
25/29
Appropriate Authority to the SMC, where charges have been
framed, the SMC instead of suspending the license
immediately proceeds with hearings, which are not
accordance with the provisions of the Act. Appropriate
directions are required to be given in this regard.
VIII. The members of civil society, NIMC should be provided
protection under Section 31.
IX. Regarding sale of ultrasound machine, there is prohibition
under Section 3-B read with Rule 3-A. Still, the ultrasound
machines are being sold illegally, in violation of the
provisions and orders of this Honble Court. It is submitted
that the moment any ultrasound machine is sold, all the
documents including names of the seller, purchaser,
financier/banker should be informed to the concerned AA
and the AA should put all the relevant documents as
provided by the Act/Rules on their website. Without support
and loans by the banking, non-banking organizations it is
highly impossible for any medical professional or hospital to
purchase ultra sonography machine. So, direction be given
to all banking and non-banking organizations to sanction
the loan or financial support after ensuring legality and
registration of the body(including authorised medical
professionals) under PCPNDT Act.
-
7/25/2019 Strict action against errant docs, tab on diagnostic centres must to curb female foeticide: panel to SC
26/29
X. Any registered body should keep only those ultrasound
machines which are owned by them and should not keep
the machines belonging to some other person/doctor/any
other clinic. It has been noticed that the doctors/clinics
outsource radiological services to a third party which is too
often not registered. Through this mechanism, the
doctors/clinics violate the provisions of the act. Relevant
extracts from the report of a visit to Punjab ordered is
quoted below:
Fortis Hospital Mohali- The records of USG
Machines were checked and we learnt that
radiological services were outsourced to a third
party; namely, CT Scan Research Center Private
Limited having its MD, Dr.Chawla. The
registration of the ultrasound unit was in the
name of Escorts Heart Institute, whereas the
name of Fortis Hospital appeared on the
ultrasound reports. Note a few of the ultrasound
machines were purchased by Escorts Hospital.
And Dr. Chawalas private limited company also
purchased some ultrasound machines. But all
these were listed in the name of Escorts heart
institute on form B. Thus it appears strange that
the Hospital name is FORTIS hospital,
registration of ultrasound facility in name of
Escorts heart Institute. While some Ultrasound
Machines are purchased by CT scan research
center private limited. The Radiology services
are run by the CT scan research center private
-
7/25/2019 Strict action against errant docs, tab on diagnostic centres must to curb female foeticide: panel to SC
27/29
limited, and all the radiologists are working for
this company and not for escorts heart institute
who according to the registration is the owner.The NIMC recommend that a thorough
investigation of these registration violations of
the PC-PNDT Act be undertaken by the
Government of Punjab and necessary action be
taken against the violators and a formal report
be submitted to Union Health Ministry within 1month.
13. It is required to be pointed out that the Amendment
Committee constituted by the MoHFW to look into amending
the PC-PNDT Act met in 2015 and did not have a single
member from the civil society or from the legal fraternity. It
was composed only of doctors. While looking at amending a
law that has vast implications on the society, it is very
essential that members of the civil society who work on such
issues consistently and members of the legal fraternity who
work with such matters are made a part of the Amendment
Committee.
14. The focus of the implementation of the Act has regrettably
been confined to the technique of ultrasonography. With the
amendment of the Act in 2002, newer medical techniques
that may lead to discrimination against the girl child were
also brought under the purview of the Act. Hence, bodies
where pre-conceptional procedures or services are provided
-
7/25/2019 Strict action against errant docs, tab on diagnostic centres must to curb female foeticide: panel to SC
28/29
where sex of the child can be ascertained before and after
conception must also be registered and they should comply
with the provisions of the Act/Rules by filling up all the
required forms. The State of Maharashtra has started to
enforce this and the other States must also be made to
follow the same.
15. Given the importance and considerable responsibility of each
authority involved in the implementation of the PC-PNDT Act
at the District and State Levels(Appropriate Authority, Nodal
Officer), a lifetime total of 5 years should be the allowed
maximum tenure of the concerned officer. This limitation
must also apply to the clerk/assistant who looks after PC-
PNDT records at the District/State level. The reason for this
limitation is that it will prevent people with vested interests
from influencing employees and using them to subvert the
implementation of the Act.
16. State-wise Position
The affidavits which have been filed by different States
have been analyzed by the Applicants. The said affidavits
along with relevant material have also been studied by the
Girls Count, a Civil Society organisation and a report was
released in December 2015 by Honble Justice Hemant L.
Gokhale (Retd. Supreme Court Judge). The analysis of the
-
7/25/2019 Strict action against errant docs, tab on diagnostic centres must to curb female foeticide: panel to SC
29/29
facts of each State/UT and directions sought by the
Applicants shall be submitted to this Honble Court during
hearing of arguments.
Filed by
[ANITHA SHENOY][ADVOCATE FOR THE APPLICANTS]
FILED ON: 05.01.2015