Reproduced from: http://www.indialegallive.com/constitutional-law-news/supreme-court-news/sex-determination-tests-foeticide-next-to-genocide-65336, published May 11, 2019
Supreme Court upholds the constitutionality of the Prohibition of Sex Selection Act,1994, throwing out the petitioner-doctors’ plea that it was not being implemented practically
By Dr KK Aggarwal
Nothing can be a more sinister, immoral and anti-social act than allowing female foeticide.” With those words, a Supreme Court bench comprising Justices Arun Mishra and Vineet Saran brought the curtains down on a two-year-old case that challenged the constitutionality of Sections 23(1) and 23(2) of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection Act), 1994. The petitioner, Federation of Obstetrics and Gynaecological Societies of India (FOGSI), had contended that the Act was not being implemented practically.
They submitted that they were being charged with female foeticide on the basis of certain clerical mistakes in Form F. The ambiguous wording of the Act is such that the petitioners are liable to be charged with the heinous crime of female foeticide and sex determination and that the members have undergone criminal prosecution, they claimed.
Section 23(2) empowers the state medical council to suspend the registration of any doctor indefinitely who is reported by the appropriate authority for necessary action. The petitioners contended that this provision is ultra vires the Constitution as it assumes the guilt of the doctor even before any trial by a competent court. It further contended that the Act fails to distinguish between the absence of intention and minor clerical errors. The Form F does not fulfil the objective of what it was enacted for and any minor clerical mistake in Form F may result in conviction of the doctor.
The Union of India, on the other hand, contended that the petitioner was trying to mislead the Court in the garb of a social cause and that a criminal activity cannot be declared to be ultra vires the Constitution. The Union submitted that the intention while enacting this Act was to uphold the rights of women and children and to abolish the practice of pre-natal tests for gender determination of the foetus, which subsequently leads to female foeticide in a majority of the cases. It was contended by the government that the male-female ratio of the country is not equal and thus the centre is duty-bound to protect the welfare of children. Pinky Anand, additional solicitor general, also contended that there is an alarming decline in the child sex ratio in the country. In several districts of the country, the ratio is less than 800 girls for 1,000 boys.
The medical fraternity counters this, saying that in India, where a single person does several ultrasounds a day, clerical errors in Form F are a reality. “It is difficult to understand why these matters go to the apex court for solution when in the current parliament itself there are over 30 doctors. Why can’t they sit with medical professionals and come out with laws which are both doctor- and patient-friendly. Interference by the courts only means a discordance between the parliament and the profession,” said a doctor who did not want to be named. As for the need to arrest the declining sex ratio, the feeling in the community was that it has to be a movement by the medical profession and not the regulators.