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Synopsis

"To improve is to change; to be perfect is to change often” - Winston Churchill

A social evil, in practice for centuries, which has been borne out of the regressive approach and insolence of the society cannot be curbed overnight. There are many ways to achieve a substantial change to curb the practice of such social evil, such as activism, public awareness, social movements, campaigns and modern education. However, such methods, although effective in the long run, cannot offer an expeditious resolution to an immediate concern. A paradigm shift at a large scale only comes at a snail’s pace, slow but everlasting. However, till such time the desired changes are reflected in the society, another way to curb a social evil is to make practice of such an evil, a heinous offence under law, so that the prospects of committing such an evil practice becomes hopeless.

Keeping this in mind, the Indian Parliament on 20.09.1994 enacted the Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994[1]. The intent of Parliament in enacting the law is clarified in the statement of objects and reasons which accompanied the introduction of the bill[2], which reads as under -

“Introduction

In the recent past Pre-Natal Diagnostic Centres sprang up in the urban areas of the country using pre-natal diagnostic techniques for determination of sex of the foetus. Such centres became very popular and their growth was tremendous as the female child is not welcomed with open arms in most of the Indian families. The result was that such centres became centres of female foeticide. Such abuse of the technique is against the female sex and affects the dignity and status of women. Various Organisations working for the welfare and uplift of the women raised their heads against such an abuse.

Statement of Objects and Reasons

1.     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 determination against the female sex 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 techniques for determination of sex of foetus, leading to                             female foeticide;

                  (ii)    prohibition of advertisement of pre-natal diagnostic techniques for detection or determination of sex;

                  (iii)   permission and regulation of the use of pre-natal diagnostic techniques for the purpose of detection of                                specific genetic abnormalities or disorders;

                 (iv)   permitting the use of such techniques only under certain conditions by the registered institutions; and

                 (v)    punishment for violation of the provisions of the proposed legislation.

            2.     The Bill seeks to achieve the above objectives.…”

The aforestated Act was amended in on 14.02.2003[3] by way of  Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition Of Sex Selection) Act (PCPNDT Act), through which, the legislature further brought Ultrasound Tests within the purview of the act. By way of the said amendment, the legislature further empowered the Central Supervisory Board, provided for constitution of the State Level Supervisory Board.

In order to curtail the practice of determination of sex of the foetus & female foeticide, the said Act aims to not only punish the offenders, but also regulate the Genetic Counselling Centres, Genetic Laboratories and Genetic Clinics in order to prevent determination of sex of the foetus. Section 3 of the Act provides for the same, which is reproduced as under –

             “…

            3. Regulation of Genetic Counselling Centres, Genetic Laboratories and Genetic Clinics - On and from the                            commencement of this Act —

                        1. no Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic unless registered under this Act, shall conduct or associate with, or help in, conducting activities relating to prenatal diagnostic techniques;

                        2. no Genetic Counselling Centre or Genetic Laboratory or Genetic Clinic shall employ or cause to be employed or take services of any person, whether on honorary basis or on payment who does not possess qualifications as may be prescribed;

                       3. no medical geneticist, gynaecologist, paediatrician, registered medical practitioner or any other person shall conduct or cause to be conducted or aid in conducting by himself or through any other person, any pre-natal diagnostic techniques at a place other than a place registered under this Act.

                                                                                                                                                  (Emphasis Supplied)

          …”

Therefore, a Registered Medical Practitioner can only conduct an Ultrasonography/Ultrasound Procedure, at a Clinic, as registered under the said act. Furthermore, the term “Genetic Clinic” has also been defined under Section 2(d) of the said act, which provides that -

“…

       (d) “Genetic Clinic” means a clinic, institute, hospital, nursing home or any place, by whatever name called, which is used for conducting pre-natal diagnostic procedures.

             Explanation- For the purposes of this clause, ‘Genetic Clinic’ includes a vehicle, where ultrasound machine or imaging machine or scanner or other equipment capable of determining sex of the foetus or a portable equipment which has the potential for detection of sex during pregnancy or selection of sex before conception, is used.

           …”

Therefore, no Ultrasonography/Ultrasound Procedure can be performed in any vehicle or immoveable object as well, in terms of scheme of the said Act.

In terms of Section 32 of the said Act, which provides power to the Central Government to make regulations,  the Central Government vide its Notification dated 01.01.1996 [4] notified the Pre-Conception And Pre-Natal Diagnostic Techniques (Prohibition Of Sex Selection) Rules, 1996. By way of an amendment to the said regulations,[5] the Central Government introduced Regulation 3B to the aforestated regulations, thereby regulating the usage of Portable Machines. The said regulation provides as under -

“…

    [3B. Regulation of portable machines

                  (1) The use of portable ultrasound machine or any other portable machine or device which has the potential for selection of sex before conception or detection of sex during pregnancy shall be permitted only in the following conditions, namely:-

                               (a) the portable machine being used, within the premises it is registered, for providing services to indoor patients;

                               (b) as part of a mobile medical unit, offering a bouquet of other health and medical services.

            …”

Therefore, a conjoint reading of the aforestated provisions & statutory scheme provides that only a registered medical practitioner can conduct an Ultrasonography/Ultrasound Procedure or any other sex determination technique, at a Clinic, as registered under the PNPCDT Act. An embargo is placed upon the use of an Ultrasound Machinery only at a fixed place, i.e., at a registered Genetic Clinic/ Centre.

However, such an embargo placed by the aforestated statutory provisions / regulations, with an intent to prevent the misuse of Ultrasound Machines for sex determination, fail to take into account patients and citizens requiring urgent ultrasound diagnosis and not in a position to physically travel to a registered Genetic Clinic/ Centre.

RIGHT TO MEDICAL TRAETMENT VIS-A-VIS IMPLEMENTATION OF PNPCDT ACT

As the offences of the sex determination are committed in secrecy and clandestine manner to avoid detection, the aforestated provisions as stated, including Regulation 3B of the said regulations do serve as a necessary deterrent to the possibility of any misuse of the ultrasound and/or sex determination machines, by making them immobile & stationary. 

However, by way of such regulations, many patients who are physically incapable of visiting such clinics /centres owing to their poor health are not able to avail such basic healthcare facilities. 

Such patient’s right to avail basic & adequate medical facilities, at home or any other place of their choice, as guaranteed by the Hon’ble Supreme Court in a plethora of cases. The Hon’ble Supreme Court, Paschim Banga Khet Mazdoor Samity v. State of West Bengal,[6] while interpreting the extent of Article 21 and the government’s responsibility to provide medical aid to every person in the country, held that in a welfare state such as India, it shall be the primary duty of the government to provide adequate medical facilities for the citizen’s at large and the same shall be state’s an obligation.

Even though the Hon’ble Supreme Court in the case of Voluntary Health Association of Punjab v. Union of India and Others[7], while interpreting the PNDT Act held that an individual may avail the appropriate legal remedy in case an exception needs to be carved out, no such exception has been made for such patients.

The validity of the aforestated statutory framework was challenged before the Hon’ble Bombay High Court in the case of “Radiological & Imaging Association Vs. Union Of India And Others” [8] on the ground of violative of Article 14 & 19 of the Constitution of India as a portable sonography machine should be made available to any patient whose physical condition is serious and unable to travel to the hospital, such a patient should get the medical benefit immediately at their residence.

However, the Hon’ble Court, while upholding its validity dismissed the aforestated contentions held as under -

“…

10. It is required to be noted that it is a very sorry state of affairs that even today in our country people are trying to undertake the determination of sex of the child in womb. Unfortunate tendency is going on in various parts of the country to discourage the birth of female child. No society can exist without a woman and for the growth of the human race and nation men and Women both are equally important. It may be true as argued by the counsel for the petitioner that even if few bad elements in the society who are indulged in such activity of sex determination and removing foetus from the womb, the axe should not fall on all. However, it is required to be noted that the only scientific way which will be available to cut the possible abuse is by enacting proper law, rules and guidelines in that behalf. Possibility cannot be ruled out of misuse of such machine if it is taken out of the Institute for the sole purpose of sex determination in the womb. It is required to be noted that ultra-sonography is a diagnostic technique which utilizes sound waves and reflections. It is not a medicine and the said machine does not provide any treatment to the patient. Considering the same, in our view in a case where a patient cannot wait till he is taken to the particular clinic for sonography and the portable machine has been taken to this residence, the possibility of evil and misuse cannot be ruled out. In our view, if the society is fully made conscious and change in attitude takes place to forget the distinction between male and female, till then all remedial measures are required to be taken to curb the misuse of modern technology which is likely to be misused to achieve the dishonest and illegal purpose. It may be true as argued by the counsel for the petitioner that even in an Institute also there are possibility of such misuse of sonography machine. So far as the hospitals are concerned, even if a particular doctor is doing illegal activities, it is at his own risk and appropriate data is available in such a case which cannot be possible if the machine is taken out of the principal place.

…”

As Section 23 of the said Act explicitly provides that any contravention of any provision of the said Act would amount to an offence and shall be punishable with imprisonment of up to three years, in addition to fine of up to ten thousand rupees, such patients often fail to avail such facilities.

The aforesaid issue further came for consideration before the Hon’ble High Court of Delhi in the case of “Deepak Nirula vs Union of India & Ors.”[9], wherein a patient had challenged the prohibition as created by the aforestated statutory scheme, as well as Notification dated 03.05.2015[10] issued by the Govt. of NCT of Delhi which provided that any Portable Ultrasound Machinery being used by a Genetic Clinic/ Centre must be affixed at the premises of the said Genetic Clinic/ Centre; and that the same shall not be moved from the Genetic Clinic/ Centre.

The Hon’ble Delhi High Court, vide its judgment took a different view to the observations made by the Hon’ble Bombay High Court, thereby holding that the PNPCDT Act and the regulations framed thereunder cannot act as a bar on infringe any individual’s fundamental rights’. The relevant portion of the said judgment is as under -

“ …

14. In the opinion of the Court, the legal provisions cited cannot be interpreted in such a manner so as to deprive the Petitioner of a treatment that is urgently required as per the advice of the concerned doctors. Any delay or failure would impede his treatment and may cause deterioration of his health. The purpose of enacting the PNDT Act was to prevent the misuse of ultrasound machines for sex determination; however, in extraordinary circumstances, the Courts can always make an exception on the use of the ultrasound machinery. The Court prima facie finds that Petitioner's right to life guaranteed by the Constitution of India would be violated, if the provisions of the PNDT Act are interpreted in a manner that prevents him from accessing essential medical equipment. In a medical emergency case such as the one before us today, where a Petitioner is genuinely not in a position to be transported to a location where the said machine is available, and where a procedure has been prescribed for a patient in domiciliary care, the afore-noted provisions of the PNDT Act and the Notification of the Government of NCT of Delhi, cannot come in his way. It also merits noting that the rationale for introduction of the said prohibitory provisions in the PNDT Act was in the context of prevention of the social evil of pre-natal sex determination, which is very far removed from the facts of the instant case; therefore, the providing the said machine to the Petitioner is clearly not in contravention of the objective promoted by the PNDT Act. Nevertheless, to ensure compliance with the provisions of the PNDT Act, Fortis Hospital, Vasant Kunj is directed to ensure that the machine is used only for the treatment of the Petitioner and for no other purpose whatsoever.

…” 

The Hon’ble Court in Para 17 of the said judgment, considering the fact that the situation faced by the petitioner therein can also be faced by others, further stressed upon consideration of law in this regard. However, despite such observations, no changes have been made to the extant statutory scheme.

Therefore, in view of the contrary views taken by two different High Courts, there is a pressing need for the legislature and/or Hon’ble Supreme Court to step in and address the issue of interpretation of Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 and an individual right to avail healthcare at home or place of choice, which is not registered under the Act. The provisions should be interpreted in a harmonious manner that not only advances the purpose of the Act and ensures its smooth and harmonious working, but also protects the fundamental rights of citizens at large to avoid absurdity, confusion, friction or conflict.