SC: Non maintenance of record is spring board for committing foeticide

The Hon’ble Supreme Court, on 3rd May 2019, in the matter of Federation of Obstetrics and Gynecological Societies of India (FOGSI) v. Union of India and others pronounced that for conducting a pre­natal diagnostic test, if a doctor 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, he is not fit to be a member of a noble medical profession.

The Hon’ble Supreme Court observed that:

Rule 9(4) of the Pre­conception and Pre­natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 provides that record to be maintained by every Genetic Clinic in respect of each man or woman subjected to any pre­natal diagnostic procedure/technique/test, shall be specified in Form ‘F’. (Para 52)

The Pre­conception and Pre­natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 and the Pre­conception and Pre­natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 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. (Para 53)

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 fulfil pre­ requisites for undertaking the procedure in case the conditions precedent for undertaking pre­natal diagnostic test is not specifically mentioned, it would be violative of provisions contained in Section 4. (Para 59)

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 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 the very purpose of the Pre­conception and Pre­natal Diagnostic Techniques (Prohibition of Sex Selection) 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. (Para 59)

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 requisite information. In case he keeps it vague, he knows fully well that he is violating the provisions of the Pre­conception and Pre­natal Diagnostic Techniques (Prohibition of Sex Selection) 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 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 counter­check can be made. There is no other barometer or criteria to find out the violation of the provisions of the Pre­conception and Pre­natal Diagnostic Techniques (Prohibition of Sex Selection) Act. (Para 59)

Form ‘F’ being technical in nature gives the insight into the reasons for 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 Pre­conception and Pre­natal Diagnostic Techniques (Prohibition of Sex Selection) Act. (Para 59)

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 be 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 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 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.  (Para 63)

The Pre­conception and Pre­natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 enjoys a presumption of constitutionality. (Para 69)

A responsible doctor is supposed to know before undertaking such pre­natal 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, he is not fit to be a member of a noble medical profession. Such culpable negligence is not warranted from a doctor. (Para 78)

There can be a legislative provision for imposing burden of proof in reverse order relating to gender justice. (Para 83)

Non maintenance of record is spring board for commission of offence of foeticide, not just a clerical error. (Para 92)

Copy of judgement: Judgement_03-May-2019

-Tushar Kaushik 

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