IN THE SUPREME COURT OF INDIA (CIVIL ORIGINAL JURISDICTION)

WRIT PETITION (CIVIL) NO. OF 2020 (UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)

(PUBLIC INTEREST LITIGATION)

IN THE MATTER OF:

SABU MATHEW GEORGE ...PETITIONER

VERSUS

UNION OF INDIA ...RESPONDENT

WITH

APPLICATION FOR INTERIM RELIEF/ DIRECTIONS

AND

APPLICATION OF EXTREME URGENCY

PAPER BOOK (FOR INDEX PLEASE SEE INSIDE)

ADVOCATE FOR THE PETITIONER: MS. SRISHTI AGNIHOTRI

INDEX

Sl. No. Particulars of Document Page No. of part to

which it belongs

Remar

ks

Part I Part II

(i) (ii) (iii) (iv) (v)

1. Court Fee

2. Listing Proforma A- A1 A-A1

3. Cover Page of Paper Book A-2

4. Index of Record of Proceedings A-3

6. Defect List A-6

7. Note Sheet NSI to…

8. Synopsis and List of Dates B - P

9. WRIT PETITION WITH AFFIDAVIT

(UNDER ARTICLE 32 OF THE

CONSTITUTION OF INDIA)

1-25

10. Annexure P-1:

The Pre-Conception and Pre-Natal

Diagnostic Techniques (Prohibition of

Sex Selection) Act, 1994

11. Annexure P-2:

The Pre-Conception and Pre-Natal

Diagnostic Techniques (Prohibition of

Sex Selection) Rules, 1996

12. Annexure P-3:

A chart containing details of directions

passed by this Hon’ble Court in various

cases pertaining to the implementation of

the PCPNDT Act.

26-46

47-81

82-94

13. Annexure P-4:

A copy of the judgment in CEHAT &

Ors. v. Union of India & Ors. (W.P. No.

301/2000), reported in 2003 (8) SCC 398

14. Annexure P-5:

A copy of the judgment in Voluntary

Health Association of Punjab vs. Union

of India reported in (2013) 4 SCC 1

15. Annexure P-6:

A copy of the judgment in Voluntary

Health Association of Punjab vs. Union

of India reported in (2015) 9 SCC 740

16. Annexure P-7:

A copy of the judgment in Federation of

Obstetrics & Gynaecological Societies

of India v. Union of India, reported in

(2019) 6 SCC 283

17. Annexure P-8:

A copy of the Ministry of Home Affairs

order dated 25.3.2020, along with

the guidelines of the MHA issued

on 24.3.2020

18. Annexure P-9:

Revised guidelines issued after

the extension of the lockdown on

15.4.2020

19. Annexure P-10:

A copy of the notification dt. 4.4.2020

issued by the Department of Health

95-103

104-116

117-131

132-198

199-203

204-218

219-220

20. ANNEXURE P-11:

A copy of a report filed by the UNFPA

titled “How many girls are missing at

birth in India”, Trends in Sex Ratio at

Birth

21. ANNEXURE P-12:

A chart depicting the state-wise break up

of total cases filed under the Act till

September 2019

22. ANNEXURE P-13:

A chart depicting the state-wise break up

of machines sealed

23. ANNEXURE P-14:

A copy of the chart depicting a state-

wise breakup of registrations

24. ANNEXURE P-15

A copy of a chart depicting the status of

filing of quarterly progress reports under

Section 18 A (6) of the Rules

25. Application for Interim Relief/

Directions

26. Application of Extreme Urgency

27. F/M

V/A

221-228

229

230

231

232-233

234-236

237-238

28.

B SYNOPSIS

This Petition has been filed under Article 32 of the Constitution of

India, in Public Interest, challenging the illegal and arbitrary

Notification issued by the Department of Health and Family Welfare,

dated 4.4.2020, whereby, the implementation of the Rule 8, 9(8) and

18 A (6) of the Pre-Conception and Pre-Natal Diagnostic Techniques

(Prohibition of Sex-Selection Rules), 1996 (henceforth the ‘Rules’),

was suspended till 30th of June, 2020. This Notification is entirely

without jurisdiction and a nullity, as the Pre-Conception and Pre-

Natal Diagnostic Techniques Act, 1994 (the PCPNDT Act), does not

give any powers for the suspension of the Rules made thereunder. The

action of the Central Government in suspending certain Rules under

the PCPNDT Act, 1994, despite not having the power to do so,

violates Article 14 and 21 of the Constitution, as (in addition to being

without jurisdiction) the Central Government has arbitrarily and

selectively weakened a legislation aimed at curbing the pernicious

activity of sex-selection and sex-determination.

The number of girls missing at birth due to the practice of gender

biased sex selection in India has been estimated at 0.46 million girls

per year for the period 2001-12 (which is a total of 5.52 million girl

children, missing at birth for the 12-year period), and the PCPNDT

Act and the Rules thereunder, are aimed at remedying this social evil.

By suspending the Rules, the Central Government has diluted the

PCPNDT Act, and this will result in misuse of technology by

unscrupulous individuals, who will no longer be deterred by the

monitoring mechanism provided in the Rules.

This illegal suspension of Rules, while medical establishments

continue to function, will provide avenues for misuse of technology

for purposes of sex-selection and sex-determination, and will result

in a loss of the gains made in the strict implementation of the Act,

despite the fact that such strict implementation is a consequence of

this Hon’ble Court’s orders. While medical establishments continue

to function, they must keep records, submit the same to the

Appropriate Authority, which must in turn submit its quarterly reports

under the Rules, as maintenance and submission of records is a part

C of the functioning of these establishments. In consonance with

Section 18 and 19 of the Act and Rule 8, the concerned establishments

must be duly registered. The suspension of these Rules, in addition to

being wholly illegal, will also cause great harm, by derailing the

proper implementation of the Act. It is submitted that an act of the

Parliament cannot be diluted by virtue of a notification issued by the

Central Government.

Certain key rules have been suspended as a result of the impugned

notification. These Rules are as follows: Rule 8: 8.Renewal of registration.-(1) An application for renewal of certificate of registration shall be madein duplicate in Form A, to the Appropriate Authority thirty days beforethe date of expiry of the certificate of registration. Acknowledgement ofreceipt of such application shall be issued by the Appropriate Authorityin the manner specified in sub-rule (2) of rule 4.(2) The Appropriate Authority shall, after holding an enquiry and aftersatisfying itself that the applicant has complied with all the requirementsof the Act and these rules and having regard to the advice of the AdvisoryCommittee in this behalf, renew the certificate of registration, as specifiedin Form B, for a further period of five years from the date of expiry of thecertificate of registration earlier granted.(3) If, after enquiry and after giving an opportunity of being heard to theapplicant and having regard to the advice of the Advisory Committee, theAppropriate Authority is satisfied that the applicant has not compliedwith the requirements of the Act and these rules, it shall, for reasons tobe recorded in writing, reject the application for renewal of certificate ofregistration and communicate such rejection to the applicant as specifiedin Form C.(4) The fees payable for renewal of certificate of registration shall be onehalf of the fees provided in sub-rule (1) of rule 5.(5) On receipt of the renewed certificate of registration in duplicate or onreceipt of communication of rejection of application for renewal, bothcopies of the earlier certificate of registration shall be surrenderedimmediately to the Appropriate Authority by the Genetic CounsellingCentre, Genetic Laboratory or Genetic Clinic.(6) In the event of failure of the Appropriate Authority to renew thecertificate of registration or to communicate rejection of application forrenewal of registration within a period of ninety days from the date ofreceipt of application for renewal of registration, the certificate ofregistration shall be deemed to have been renewed.

Rule 9: Maintenance and Preservation of Records Rule 9 (8) - (8) Every Genetic Counselling centre, Genetic Laboratory, GeneticClinic, Ultrasound Clinic and Imaging Centre shall send a completereport in respect of all pre-conception or pregnancy relatedprocedures/techniques/tests conducted by them in respect of each monthby 5th day of the following month to the concerned Appropriate Authority.

Rule 18A: Code of Conduct to be observed by Appropriate Authorities- Rule 18A(6) – All the Appropriate Authorities including the State, District and Sub-District notified under the Act, inter alia, shall submit quarterly progress report to the Government of India through State Government and

D maintain Form H for keeping the information of all registrations made readily available.

These key rules cannot be looked at in isolation. Rule 8, as a matter

of fact is intrinsically connected with CHAPTER VI of the Act.

Section 18 and 19 in Chapter VI deal with registration of genetic

counselling centres, genetic laboratories and genetic clinics.

Section 23 of the Act prescribes a penalty for contravention of the

Rules. Non-compliances with Sections 18 and 19 (which are

connected to Rule 8) also results in a penalty under Section 23 of

the Act. Further, the record keeping requirements (under Rule 9(8))

are intrinsically connected to the proviso to Section 4(3), which

states that a failure to keep a complete record “shall amount to

contravention of provisions of section 5 or section 6 unless

contrary is proved by the person conducting such

ultrasonography.” Any suspension of the Rules thus dilutes the

provisions of the Act.

This Hon’ble Court has, from time to time, monitored the

implementation of the PCPNDT Act. Proper and timely keeping of

records, has a central role to play in the scheme of the Act. In the

case of Federation of Obstetrics & Gynaecological Societies of

India v. Union of India, reported in (2019) 6 SCC 283

(henceforth, the FOGSI (supra) case), this Hon’ble Court observed

that proper maintenance of records is mandatory. The relevant

portion of the judgment is extracted below for the convenience of

this Hon’ble Court:

“98. Non-maintenance of record is springboard 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 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 Centre, Genetic Laboratory or Genetic Clinic, by the appropriate authority as provided under Section 20 of the Act.”

(emphasis supplied)

One of the first cases in which this Hon’ble Court took stock of the

lack of implementation of the Act was the case of Centre for

E Enquiry into Health & Allied Themes (CEHAT) v. Union of

India, reported in (2001) 5 SCC 577 wherein this Hon’ble Court

noted that “It is apparent that to a large extent, the PNDT Act is

not implemented by the Central Government or by the State

Governments. Hence, the petitioners are required to approach this

Court under Article 32 of the Constitution of India.” In the

CEHAT case, this Hon’ble Court passed orders for better

implementation of the Act. The implementation of the PCPNDT

Act was, thereafter, again before this Hon’ble Court in the case of

Voluntary Health Association of Punjab vs. Union of India

reported in (2013) 4 SCC 1. In this case, this Hon’ble Court

observed that “We notice that even though the Union of India has

constituted the Central Supervisory Board and most of the States

and Union Territories have constituted State Supervisory Boards,

Appropriate Authorities, Advisory Committees, etc. under the Act,

but their functioning are far from satisfactory.” After taking into

account the implementation status of the PCPNDT Act in various

States and Union territories and after taking into account the stand

of the Union of India, inter alia, directions were passed for the

better implementation of the Act, including a direction that;

9.4. The authorities should ensure also that all genetic counselling centres, genetic laboratories and genetic clinics, infertility clinics, scan centres, etc. using pre-conception 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 concerned, in accordance with Rule 9(8) of the Rules. Communicate this order to the Registrars of various High Courts, who will take appropriate follow-up action with due intimation to the courts concerned.”

(emphasis supplied)

This Hon’ble Court in the case of Voluntary Health Association

of Punjab vs. Union of India reported in (2015) 9 SCC 740, after

taking into account the implementation status of the PCPNDT Act

in various States and Union territories and after taking into account

the stand of the Union of India, inter alia passed the following

directions qua Rule 18-A (6) (which has been suspended by the

impugned notification):

F 45. At this juncture, we must note with profit that Ms AnithaShenoy, learned counsel who is appearing for Dr Sabu George,the newly impleaded party, submits that the appropriateauthorities are not following the mandate enshrined under Rule18-A of the Pre-Conception and Pre-Natal DiagnosticsTechniques (Prohibition of Sex Selection) Rules, 1996 (for brevity“the Rules”). She has drawn our attention to sub-rule (6) of Rule18-A. It reads as follows:“18-A. (6) All the appropriate authorities including the State,districts, sub-districts notified under the Act, inter alia, shallsubmit quarterly progress report to the Government of Indiathrough the State Government and maintain Form H for keepingthe information of all the registrations made readily available.”In view of the aforesaid Rule, it is directed that all theappropriate authorities including the State, districts and sub-districts notified under the Act shall submit quarterly progressreport to the Government of India through the StateGovernment and maintain Form H for keeping the informationof all registrations readily available.

(emphasis supplied)

In the case of Voluntary Health Assn. of Punjab v. Union of

India reported in (2016) 10 SCC 265, this Hon’ble Court passed

the following directions (which dealt with, inter alia, compliance

with Rule 18 A (which has been suspended by the impugned

notification):

44.4. The provisions contained in Sections 22 and 23 shall be strictly adhered to. Section 23(2) shall be duly complied with and it shall be reported by the authorities so that the State Medical Council takes necessary action after the intimation is given under the said provision. The appropriate authorities who have been appointed under Sections 17(1) and 17(2) shall be imparted periodical training to carry out the functions as required under various provisions of the Act.

……. 44.14. All the appropriate authorities including the States and districts notified under the Act shall submit quarterly progress report to the Government of India through the State Government and maintain Form H for keeping the information of all registrations readily available as per sub-rule (6) of Rule 18-A of the Rules.

….. (emphasis supplied)

Thus, we see that this Hon’ble Court’s orders, had been a driver

behind proper implementation of the PCPNDT Act and the Rules

therein, especially the Rules suspended by the impugned

notification. This Hon’ble Court has time and again passed orders

on the importance of and the mandatory nature of record keeping.

In the FOGSI Case (supra), this Hon’ble Court noted the

importance of record keeping in the following words:

G It is rightly contended on behalf of the respondents that there 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 preconception 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 Form D along with the details of the 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/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 other provisions of the Act and violations of Section 23 are often accompanied by violations of the 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 identifying offence and the accused. The inspection of records is crucial to identify wrongdoers 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.

(emphasis supplied)

In the FOGSI Case (supra), this Hon’ble Court also noted that the

PCPNDT Act was not the only Act that requires medical professionals

to maintain records. The relevant portion of the judgment is extracted

below for the convenience of this Hon’ble Court: “58. 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 the Medical Council of India that the Medical Council of India (MCI) under 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-maintaining of records is a misconduct. …… 61. It is further pointed out that the Pharmacy PracticeRegulations, 2015 also require pharmacists to maintain records.62. Reference has also been made to the provisions of theTransplantation of Human Organs and Tissues Act, 1994 andRules, which contain provisions that are similar to the Act.

H Section 20 of the Transplantation of Human Organs and Tissues Act, 1994 …. 63. Reference has also been made to the Medical Termination ofPregnancy Act, 1971, which also places an obligation on medicalprofessional to maintain proper records.

(emphasis supplied)

Despite the requirement for maintenance of records being a

standard feature of laws regulating medical practices, in the present

instance, the PCPNDT Rules have been arbitrarily selected and

‘suspended’, under the guise of the lockdown. This action, rolls

back the gains made by the proper implementation of the Act by

this Hon’ble Court, and is arbitrary and unreasonable, aside from

being a nullity, and wholly without jurisdiction. Such a power to

suspend is not provided in the scheme of the Act. The impugned

notification claims that it derives such a power from Clause (iv c)

of Sub-section 2 of Section 32 of the PCPNDT Act. Section 32 sub-

section 2 reads as follows:

3. Power to make rules.-

1. The Central Government may make rules for carrying

out the provisions of this Act.

2. In particular and without prejudice to the generality of

the foregoing power, such rules may provide for—

…..

(ivc) empowering the Appropriate Authority in any

other matter under clause (d) of section 17A;

Section 17 A of the PCPNDT Act, reads as follows:

17A. Powers of Appropriate Authorities.- The Appropriate Authority shall have the powers in respect of the following matters, namely:-

a) summoning of any person who is in possession of any informationrelating to violation of the provisions of this Act or the rules madethereunder;

b) production of any document or material object relating to clause(a);

I c) issuing search warrant for any place suspected to be indulging insex pre-natal sex determination; and

d)any other matter which may be prescribed.

In view of the above, it is evident that the PCPNDT Act does not

give any powers for the temporary suspension of Rules to the

Central Government. The phrase ‘any other matter which may be

prescribed’ has to be interpreted ejusdem generis with the

remaining provisions of Section 17 A.

Requirements prescribed under the PCPNDT Act have been

necessitated only because of the extraordinary circumstances of

misuse by doctors leading to rampant sex determination,

consequent sex selective abortions and resultant low child sex

ratio prevailing in our country. It is in this background that

registration of various facilities using ultrasound machines and

record keeping provisions have to be viewed. Such provisions

cannot be given a short shrift merely due to the fact that a

lockdown is prevailing, especially given that the PCPNDT Act

does permit the suspension of the rules framed thereunder, and

hospitals and medical establishments are continuing to function

during the national lockdown. When medical establishment are

functioning, the keeping of records and submission of reports to

the Appropriate Authority as well as the submission of quarterly

reports by the Appropriate authority, etc. are a part of the

functioning of these establishments. Permitting the non-

maintenance of records, permitting delayed reporting to the

Appropriate authority, or exempting the submission of quarterly

reports can derail the working of the PCPNDT Act, and could lead

to increase in the misuse of technology by conducting sex

determination test and subsequent sex selective abortions over

these three months.

Submission of quarterly reports makes course correction possible,

and delayed submission of the same, can cause illegalities or

misuse of technology to persist. It is submitted that this will result

in the loss of all the gains made with regard to the strict

J implementation of the Act, which is a direct result of the orders

of this Hon’ble Court.

In Babu Verghese v. Bar Council of Kerala, reported in (1999)

3 SCC 422, this Hon’ble Court reiterated the basic principle of

law long settled that if the manner of doing a particular act is

prescribed under any statute, the act must be done in that manner

or not at all. The origin of this rule is traceable to the decision

in Taylor v. Taylor, [(1875) 1 Ch D 426: 45 LJCh 373] which was

followed by Lord Roche in Nazir Ahmad v. King

Emperor, [(1936) 63 IA 372 : AIR 1936 PC 253] who stated as

under:

“[W]here a power is given to do a certain thing in a certain

way, the thing must be done in that way or not at all.”

While Section 32 of the PCPNDT Act, read with Section 17-A

therein contemplates the framing of Rules, it does not

contemplate “temporary suspension” of such Rules. Thus, the

notification dated 4.4.2020 suffers from a manifest illegality.

The Act of the Central Government in suspending the Rules under

the PCPNDT Act suffers from the vice of arbitrariness. These

Rules have been singled out for suspension, despite the fact that

the PCPNDT Act is not the only Act requiring detailed record

keeping by medical professionals. Further there is no explanation

of why the suspension is to operate till June 30th, 2020 when the

lockdown ends on the 3rd of May, 2020. Thus, the impugned

notification of 4.4.2020 is entirely without jurisdiction, and is a

nullity, and is required to be struck down. Hence, this Writ

Petition.

LIST OF DATES

Prenatal sex determination and sex selection

violates Article 14 of the Indian Constitution. This

Hon’ble Court has been aware of the catastrophic

impact of this practice, and has taken an active

K role in the strict implementation of the PCPNDT

Act for the past 2 decades.

1994 The Parliament enacted the Pre-Natal Diagnostic

Techniques (Regulation and Prevention of

Misuse) Act, 1994 (the PCPNDT Act).

1996 The Central Government framed the Pre-Natal

Diagnostic Techniques (Regulation and

Prevention of Misuse) Rules, 1996.

4.5.2001 This Court in its order in CEHAT & Ors. v.

Union of India & Ors. (W.P. No. 301/2000)

reported in 2003 (8) SCC 398 issued elaborate

directions to the Central Government, Central

Supervisory Board, State Governments/ UT

Administrations and Appropriate Authorities for

the purpose of implementing the provisions of the

PNDT Act, 1996.

19.9.2001 This Court further directed the States/ Union

Territories to submit quarterly reports to the

Central Supervisory Board regarding their

progress in implementing the provisions of the

PNDT Act, vide its order dated 19.9.2001 in

CEHAT & Ors. v. Union of India & Ors. (W.P.

No. 301/2000) reported in 2003 (8) SCC 398.

7.11.2001 This Court further directed the establishment of

the National Inspection and Monitoring

Committee for the implementation of the Act, vide

its order dated 7.11.2011 in CEHAT & Ors. v.

Union of India & Ors. (W.P. No. 301/2000)

reported in 2003 (8) SCC 398.

31.03.2002 This Court further issued elaborate directions on,

inter alia, the publication of half-yearly

L consolidated reports by the Central Supervisory

Board, vide its order dated 31.03.2002 in CEHAT

& Ors. v. Union of India & Ors. (W.P. No.

301/2000) reported in 2003 (8) SCC 398.

2003 In the year 2003, several comprehensive

amendments were made to the Act and the Rules.

This was with a view to plugging loopholes in the

law and to make it more effective. Among these

amended Rules was Rule 9(8), which is relevant

to the present Petition are extracted below: 9. (3) The record to be maintained by every GeneticLaboratory, in respect of each man or woman subjected toany pre-natal diagnostic procedure/ technique/test, shallbe as specified in Form E.

(4) The record to be maintained by every Genetic Clinic,in respect of each man or woman subjected to any pre-natal diagnostic procedure/technique/test, shall be asspecified in Form F.

(8) Every Genetic Counselling Centre, GeneticLaboratory, Genetic Clinic, Ultrasound Clinic andImaging Centre shall send a complete report in respectof all preconception or pregnancy relatedprocedures/techniques/tests conducted by them in respectof each month by 5th day of the following month to theAppropriate Authority concerned.

…..

04.03.2013 This Hon’ble Court, in the case of Voluntary

Health Association of Punjab vs. Union of

India, reported in (2013) 4 SCC 1, after taking

into account the implementation status of the

PCPNDT Act in various States and Union

territories and after taking into account the stand

of the Union of India, inter alia passed the

following directions: “9.2 The State Advisory Committees and District Advisory Committees should gather information relating to the breach of the provisions of the PN & 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. 9.4 The authorities should ensure also that all genetic counselling centres, genetic laboratories and genetic clinics, infertility clinics, scan centres, etc. Using pre-

M conception 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 concerned, in accordance with Rule 9(8) of the Rules. 9.5 States and District Advisory Boards should ensure that all manufactures and sellers of ultrasonography machines do not sell any machine to any unregistered centre, as provided under Rule 3-A and disclose, on a quarterly basis, to the State/Union Territory concerned and the Central Government, a list of persons of whom the machines have been sold, in accordance with Rule 3-A(2) 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 by the authorities concerned. 9.7 Steps should also be taken by the State Government and the authorities under the Act for mapping of all registered and unregistered ultrasonography clinics, in three months’ time.”

09.01.2014 The Petitioner issued the notification bearing

G.S.R. 13(E) dated 9.1.2014 whereby Pre-

Conception and Pre-Natal Diagnostic Techniques

(Prohibition of Sex Selection) Amendment Rules,

2014 were amended.

2015 This Hon’ble Court in the case of Voluntary

Health Association of Punjab vs. Union of

India, reported in (2015) 9 SCC 740, after taking

into account the implementation status of the

PCPNDT Act in various States and Union

territories and after taking into account the stand

of the Union of India, inter alia passed the

following directions inter alia qua Rule 18-A (6):

“18-A. (6) All the appropriate authorities including the State, districts, sub-districts notified under the Act, inter alia, shall submit quarterly progress report to the Government of India through the State Government and maintain Form H for keeping the information of all the registrations made readily available.”

N 08.11.2016

13.12.2017

14.03.2018

03.12.2019

24.3.2020

This Hon’ble Court in the case of Voluntary

Health Association of Punjab vs. Union of

India, reported in (2016) 10 SCC 265, issued

elaborate directions on, inter alia, implementation

of the PCPNDT Rules, 2014 with emphasis on the

training provided therein being imperative for

realizing the object and purpose of the Act. This

Court in Sabu Mathew George v. Union of

India, reported in (2018) 3 SCC 299, gave a

detailed judgment on the need for internet

intermediaries such as Google India, Yahoo! India

and Microsoft Corporation (I)(P) Ltd. to cooperate

and take measures to stop advertisements related

to pre-conception and pre-natal sex-determination

and sex selection.

This Hon’ble Court, in the case of Union of India

v. Indian Radiological and Imaging Association

and Ors., reported in (2018) 5 SCC 773, stayed

the judgment and order of the Delhi High Court

dt. 17.02.2016, noting the importance of minimum

qualifications set for medical professionals

carrying out pre-natal diagnostic tests.

This Hon’ble Court, in the case of Federation of

Obstetrics & Gynaecological Societies of India

v. Union of India, reported in (2019) 6 SCC 283,

gave a detailed judgment, highlighting the

problems caused by a declining sex ratio in India

and the importance of record keeping. The Court

further recorded that the dilution of the provisions

of the Act or the Rules would only defeat the

purpose of the Act to prevent female foeticide.

The Central Government announced vide an

announcement by the Hon’ble Prime Minister and

O Notification No. 40-3/2020-DM-I(A) issued by

the Ministry of Home Affairs, Government of

India that a nation-wide lockdown for a period of

21 days (now extended till the 3rd of May) would

be enforced as a precautionary measure to curb the

spread of COVID 2019.

Hospitals and medical establishments, however,

continued to remain functional during this period.

04.04.2020 On 04.04.2020, a notification was issued by the

Department of Health, whereby, the

implementation of the Rule 8, 9(8) and 18 A (6) of

the Pre-Conception and Pre-Natal Diagnostic

Techniques (Prohibition of Sex-Selection

Rules),1996, till 30th of June, 2020, in view of the

prevailing lockdown.

This Notification is entirely beyond the scope of

the powers of the Department of Health and

Family Welfare, as the Pre-Conception and Pre-

Natal Diagnostic Techniques Act, 1994 (the

PCPNDT Act), does not give any powers for the

suspension of the Rules made thereunder. Further,

this action of the central government in in

suspending certain Rules under the PCPNDT Act,

1994, despite not having the power to do so,

violates Article 14 and 21 of the Constitution by

arbitrarily and selectively weakening a legislation

aimed at curbing the pernicious activity of sex-

selection and sex-determination. Lastly, by

suspending the Rules, the Central Government has

indirectly affected the functioning of the PCPNDT

Act. An act of the Parliament cannot be diluted by

virtue of a notification issued by the Central

Government.

9.04.2020 Upon the public outcry at the prospect of the

suspension of the Rules, a clarification was issued

P by the Central Government through a press

release, clarifying certain aspects of the

notification. However, the press release entirely

skirts the issue of the Rules under PCPNDT Rules

being the only ones to be suspended, and the fact

that the Central Government had no such power to

suspend the rules.

18.04.2020 Hence, this Writ Petition.

1

IN THE MATTER OF:

SABU MATHEW GEORGE

Petitioner

VERSUS

UNION OF INDIA

Through

The Secretary,

Department of Health and Family

Welfare Nirman Bhavan

Near Udyog Bhawan Metro Station,

Maulana Azad Rd, New Delhi, Delhi 110011

Respondent

TO,

THE HON’BLE CHIEF JUSTICE OF INDIA AND HIS

COMPANION JUSTICES OF THE SUPREME COURT OF INDIA

THE HUMBLE PETITION OF THE

PETITIONER ABOVE NAMED

MOST RESPECTFULLY SHOWETH:-

1. This Petition has been filed under Article 32 of the Constitution

of India, in Public Interest, challenging the Notification issued

by the Department of Health and Family Welfare, dated

IN THE SUPREME COURT OF INDIA (CIVIL ORIGINAL JURISDICTION)

WRIT PETITION (CIVIL) NO. OF 2020 (UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)

(PUBLIC INTEREST LITIGATION)

2 4.4.2020, whereby, the implementation of the Rule 8, 9(8) and

18 A (6) of the Pre-Conception and Pre-Natal Diagnostic

Techniques (Prohibition of Sex-Selection Rules),1996, was

suspended till 30th of June, 2020. This Notification is entirely

without jurisdiction and is a nullity, as the Pre-Conception and

Pre-Natal Diagnostic Techniques Act, 1994 (the PCPNDT Act),

does not give any powers for the suspension of the Rules made

thereunder. This action of the Central Government in

suspending certain Rules under the PCPNDT Act, 1994, aside

from being a nullity, violates Article 14 and 21 of the

Constitution by arbitrarily and selectively weakening a

legislation aimed at curbing the pernicious activity of sex-

selection and sex-determination. Lastly, by suspending the

Rules, the Central Government has diluted the functioning of

the PCPNDT Act. An Act of the Parliament cannot be diluted

by virtue of a notification issued by the Central Government.

1A. This petitioner Dr. Sabu Mathew George has dedicated 35 years

to the well- being of girl children. He was educated at IIT

Bombay, Johns Hopkins University, Baltimore and Cornell

University, Ithaca. He chose to study nutrition and public

health, 1981-1985, after passing out of IIT, as child

malnutrition was rampant at the time. From mid-1985, he spent

4 years living in the RUHSA Department of Christian Medical

College; Hospital Vellore, Kavanur village working with

communities of 12 villages in Gudiyattom Taluk. Apart from

work on improving the growth of pre-school girls and boys, one

of his most significant contributions to the field of research was

documentation of female infanticide, 1986-1990 in these

villages. This first prospective study on female infanticide later

led to then Chief Minister of Tamil Nadu establishing the cradle

baby scheme in 1991. By early 1990s, he witnessed female

foeticide in several districts of Tamil Nadu and initiated field

research in Haryana villages in 1995 to 1998. This pioneering

research was published in Economic and Political Weekly in

1998. He has also been involved in the implementation of the

PCPNDT Act for more than 2 decades, and he was one of the

3 original Petitioners in the case of CEHAT & Ors. v. Union of

India & Ors. (W.P. No. 301/2000), reported in 2003 (8) SCC

398. He was subsequently appointed as a member of the

National Inspection and Monitoring Committee (NIMC) which

was set-up by the Ministry of Health and Family Welfare

pursuant to the judgment of this Hon’ble Court, as well as a a

member of several committees of the Union Health Ministry on

Amendments to PNDT Act over 2001-2018. He has been a

petitioner and also impleaded in this Hon’ble Court in several

PNDT cases over 2008 – 2018.

1B. The Petitioner has not approached any other High Court or this

Hon’ble Court with a petition of similar nature.

1C. That there is no personal interest of the Petitioner in filing this

Petition.

1D. The Petitioner states that there is no personal gain, private

motive or oblique reason in filing the Public Interest Litigation.

.

3. That no civil, criminal or revenue litigation, having a nexus

with the present Petition, is pending against the Petitioner.

4. Cause of Action:

The present Writ Petition has been preferred by the Petitioner

in Public Interest, challenging a notification dated 4.4.2020,

issued by the Department of Health and Family Welfare,

whereby Rule 8, Rules. 9 (8) and Rule 18 A 6 of the Pre-

Conception and Pre-Natal Diagnostic Techniques (Prohibition

of Sex-Selection Rules),1996, have been suspended.

5. Injury to the public

The illegal practice of sex selection and sex determination has

resulted in millions of girls not being born. This notification of

4.4.2020, dilutes the implementation of the PCPNDT Act,

aimed at curbing the evil of sex determination, and constitutes

4 a grave injury to the members of the public by violating the

rights of girl children under Article 14 and 21 of the

Constitution.

6 FACTS OF THE CASE:

6.1 The Parliament enacted the Pre-Natal Diagnostic Techniques

(Regulation and Prevention of Misuse) Act, 1994. The

Statement of Objects and Reasons of the Act, read as follows;

“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 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.

2. The Bill, inter alia, provides for:(i) prohibition of the misuse of pre-natal diagnostic techniques fordetermination of sex of foetus, leading to female foeticide;(ii) prohibition of advertisement of pre-natal diagnostic techniquesfor detection or determination of sex;(iii) permission and regulation of the use of pre-natal diagnostictechniques for the purpose of detection of specific geneticabnormalities or disorders;(iv) permitting the use of such techniques only under certainconditions by the registered institutions; and(v) punishment for violation of the provisions of the proposedlegislation.3. The Bill seeks to achieve the aforesaid objectives.”

(emphasis supplied)

6.2 The Central Government framed the Pre-Natal Diagnostic

Techniques (Regulation and Prevention of Misuse) Rules,

1996.

6.3 The Act was further amended in 2003. 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 amendments of 2003 brought

techniques of pre-conception sex selection within the ambit of

the Act and have also brought use of ultrasound machines

under its umbrella. The Amendments provided for constitution

of Central and State Level Supervisory Board. More stringent

punishments were also provided. Appropriate authorities were

given powers of civil court for search, seizure and sealing.

5 Maintenance of records was made mandatory in respect of use

of ultrasound machines.

A copy of the amendment to Pre-Conception and Pre-Natal

Diagnostic Techniques (Prohibition of Sex Selection) Act,

1994 and the Rules therein has been provided herewith

and marked as Annexure P1 (Page 26-46) and Annexure

P2 (Pages 47-81).

6.4 That from time to time, this Hon’ble Court has been seized of

the status of implementation of the PCPNDT Act, and has

through its various judgments, ensured that the Act is properly

implemented and the record keeping provisions under the Act

are strictly adhered to. A chart containing details of directions

passed by this Hon’ble Court in various cases has been annexed

herewith and marked as Annexure P3 (Pages 82-94 ).

6.5 One of the first cases in which this Hon’ble Court took stock

of the lack of implementation of the Act was the case of Centre

for Enquiry into Health & Allied Themes (CEHAT) v. Union of

India, (2001) 5 SCC 577 wherein this Hon’ble Court noted that

“it is apparent that to a large extent, the PNDT Act is not

implemented by the Central Government or by the State

Governments. Hence, the petitioners are required to approach

this Court under Article 32 of the Constitution of India.” In the

CEHAT case, through various orders, this Hon’ble Court gave

directions for better implementation of the Act. In the same

order, this Hon’ble Court directed that “the CSB shall examine

the necessity to amend the Act keeping in mind emerging

technologies and difficulties encountered in implementation of

the Act and to make recommendations to the Central

Government (re Section 16).”

6.6 In CEHAT v. Union of India, (2003) 8 SCC 409, this Hon’ble

Court recorded a statement of the counsel for Union of India to

the effect that the Central Government has decided to take

concrete steps for the implementation of the Act and suggested

to set up National Inspection and Monitoring Committee for

the implementation of the Act. In CEHAT v. Union of India,

(2003) 8 SCC 412, this Hon’ble Court noted that in conformity

6 with the various directions issued by this Court, the Act was

amended and titled as “the Preconception and Prenatal

Diagnostic Techniques (Prohibition of Sex Selection) Act”.

A copy of the judgment in CEHAT & Ors. v. Union of India

& Ors. (W.P. No. 301/2000), reported in 2003 (8) SCC 398

has been annexed herewith and marked as Annexure P4

(Pages 95-103).

6.7. The implementation of the PCPNDT Act was again before this

Hon’ble Court in the case of Voluntary Health Association

of Punjab vs. Union of India reported in (2013) 4 SCC 1. In

this case, this Hon’ble Court observed that “We notice that

even though the Union of India has constituted the Central

Supervisory Board and most of the States and Union

Territories have constituted State Supervisory Boards,

Appropriate Authorities, Advisory Committees, etc. under the

Act, but their functioning are far from satisfactory.” After

taking into account the implementation status of the PCPNDT

Act in various States and Union territories and after taking into

account the stand of the Union of India, inter alia, this Hon’ble

Court passed the following directions:

“9.1. The Central Supervisory Board and the State and Union Territories Supervisory Boards, constituted under Sections 7 and 16-A of PN & PNDT Act, would meet at least once in six months,so as to supervise and oversee how effective is the implementationof the PN & PNDT Act.9.2. The State Advisory Committees and District AdvisoryCommittees should gather information relating to the breach ofthe provisions of the PN & PNDT Act and the Rules and take stepsto seize records, seal machines and institute legal proceedings, ifthey notice violation of the provisions of the PN & PNDT Act.9.3. The committees mentioned above should report the details ofthe charges framed and the conviction of the persons who havecommitted the offence, to the State Medical Councils for properaction, including suspension of the registration of the unit andcancellation of licence to practice.9.4. The authorities should ensure also that all geneticcounselling centres, genetic laboratories and genetic clinics,infertility clinics, scan centres, etc. using pre-conception and pre-natal diagnostic techniques and procedures should maintain allrecords and all forms, required to be maintained under the Actand the Rules and the duplicate copies of the same be sent to thedistrict authorities concerned, in accordance with Rule 9(8) of theRules.9.5. States and District Advisory Boards should ensure that allmanufacturers and sellers of ultrasonography machines do notsell any machine to any unregistered centre, as provided underRule 3-A and disclose, on a quarterly basis, to the State/Union

7 Territory concerned and the Central Government, a list of persons to whom the machines have been sold, in accordance with Rule 3-A(2) 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 by the authorities concerned. 9.7. Steps should also be taken by the State Government and the authorities under the Act for mapping of all registered and unregistered ultrasonography clinics, in three months' time. 9.8. Steps should be taken by the State Governments and the Union Territories to educate the people of the necessity of implementing the provisions of the Act by conducting workshops as well as awareness camps at the State and district levels. 9.9. Special cell be constituted by the State Governments and the Union Territories to monitor the progress of various cases pending in the courts under the Act and take steps for their early disposal.

9.10. 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 Rules 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. 9.11. The various courts in this country should take steps to dispose of all pending cases under the Act, within a period of six months. Communicate this order to the Registrars of various High Courts, who will take appropriate follow-up action with due intimation to the courts concerned.”

A copy of the judgment of this Hon’ble Court in Voluntary Health

Association of Punjab vs. Union of India reported in (2013) 4

SCC 1 has been annexed herewith and marked as Annexure P5

(Pages 104-116).

6.8 This Hon’ble Court, in the case of Voluntary Health Association

of Punjab vs. Union of India reported in (2015) 9 SCC 740, after

taking into account the implementation status of the PCPNDT Act

in various States and Union territories, and after taking into

account the stand of the Union of India, inter alia passed the

following directions inter alia qua Rule 18-A (6) :

45. ……“18-A. (6) All the appropriate authorities including the State, districts, sub-districts notified under the Act, inter alia, shall submit quarterly progress report to the Government of India through the State Government and maintain Form H for keeping the information of all the registrations made readily available.”

In view of the aforesaid Rule, it is directed that all the appropriate authorities including the State, districts and sub-districts notified under the Act shall submit quarterly progress report to the Government of India through the State Government and maintain Form H for keeping the information of all registrations readily available.

(emphasis supplied)

8

A copy of the judgment of this Hon’ble Court in Voluntary Health

Association of Punjab vs. Union of India reported in (2015) 9

SCC 740 has been annexed herewith and marked as Annexure

P6 (Pages 117-131).

6.9 In the case of Voluntary Health Assn. of Punjab v. Union of India

reported in (2016) 10 SCC 265, this Hon’ble Court passed the

following directions (which dealt with, inter alia, compliance with

Rule 18 A (which has been suspended by the impugned

notification):

44. Keeping in view the deliberations made from time to time andregard being had to the purpose of the Act and the far-reaching impactof the problem, we think it appropriate to issue the following directionsin addition to the directions issued in the earlier order:……. . 44.4. The provisions contained in Sections 22 and 23 shall be strictly adhered to. Section 23(2) shall be duly complied with and it shall be reported by the authorities so that the State Medical Council takes necessary action after the intimation is given under the said provision. The appropriate authorities who have been appointed under Sections 17(1) and 17(2) shall be imparted periodical training to carry out the functions as required under various provisions of the Act.

…….. 44.14. All the appropriate authorities including the States and districts notified under the Act shall submit quarterly progress report to the Government of India through the State Government and maintain Form H for keeping the information of all registrations readily available as per sub-rule (6) of Rule 18-A of the Rules.

…. (emphasis supplied)

6.10 The enactment of the PCPNDT Act and Rules, and the continuous

monitoring by this Hon’ble Court was due to the sharp decline in

the sex ratio in India. This was taken note of by this Hon’ble Court

in the judgment of Federation of Obstetrics & Gynaecological

Societies of India v. Union of India, reported in (2019) 6 SCC

283 (Henceforth ‘the FOGSI case’). In this case, this Hon’ble Court

noted that: “In the year 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 the respondent Union of India following Statewise data has been furnished:

9 “Sex Ratio (Female per 1000 Male) at Birth by residence, India

and bigger States, SRS 2012-14 to 2014-16

Sl.

No.

India and bigger

States

2012 2013 Change 2013 2014 Change

India 906 900 -6 900 898 -2

1. Andhra Pradesh 919 918 -1 918 913 -5

2. Assam 918 900 -18 900 896 -4

3. Bihar 907 916 9 916 908 -8

4. Chhattisgarh 973 961 -12 961 963 2

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. Jammu & Kashmir 899 899 0 899 906 7

10. Jharkhand 910 902 -8 902 918 16

11. Karnataka 950 939 -11 939 935 -4

12. Kerala 974 967 -7 967 959 -8

13. Madhya Pradesh 927 919 -8 919 922 3

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. Rajasthan 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.

20. Uttar Pradesh 869 879 10 879 882 3

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 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 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.”

(emphasis supplied)

In the FOGSI case, this Hon’ble Court also observed that proper

maintenance of records is mandatory. The relevant portion of the

10 judgment is extracted below for the convenience of this Hon’ble

Court:

“98. Non-maintenance of record is springboard 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 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 Centre, Genetic Laboratory or Genetic Clinic, by the appropriate authority as provided under Section 20 of the Act.”

A copy of the judgment in the matter of Federation of Obstetrics

& Gynaecological Societies of India v. Union of India, reported

in (2019) 6 SCC 283 has been annexed herewith and marked

as Annexure P7 (Page 132-198). Thus, we see that this

Hon’ble Court’s orders, had been a driver behind proper

implementation of the PCPNDT Act and the Rules therein. This

Hon’ble Court has time and again passed orders on the

importance of and the mandatory nature of record keeping.

6.11 The Central Government, on 24.3.2020, announced the nation-

wide lockdown for a period of 21 days (now extended till the 3rd of

May), as a precautionary measure to curb the spread of COVID

2019. Hospitals and medical establishments, however, continued

to remain functional during this period. A copy of the Ministry of

Home Affairs order dated 24.3.2020, along with the guidelines of

the MHA issued on 24.3.2020, have been annexed herewith

and marked as Annexure P8 (Pages 199-203). Revised

guidelines issued after the extension of the lockdown on

15.4.2020 have also been annexed herewith and marked as

Annexure P9 (Page 204-218).

6.12 However, on 4.4.2020, a notification was issued by the Department of Health, whereby, the implementation of the Rule 8, 9(8) and 18

A (6) of the Pre-Conception and Pre-Natal Diagnostic Techniques

(Prohibition of Sex-Selection Rules),1996, till 30th of June, 2020,

in view of the prevailing lockdown. A copy of this notification has

been annexed herewith and marked as Annexure

P10 (Pages 219-220).

11 6.13 This suspension of Rules under the PCPNDT Act, resulted in public

outcry given that the PCPNDT Act does not permit suspension of

rules. Further, the PCPNDT Act was, as per the knowledge of the

Petitioner, the only such medico-legal law which was subjected to a

suspension of Rules thereunder. As a result of the public outcry, a

clarification, in the form of a press release, was issued by the Central

Government. However, this clarification entirely skirted the fact that

the Central Government has no power to suspend these Rules, nor

did the press release explain the reason for selectively suspending

the Rules under the PCPNDT Act, while no other relaxation

regarding record keeping under other acts has been provided. The

text of the clarification is extracted below, for the convenience of

this Hon’ble Court:

“A section of the media is speculating that the PC&PNDT (Pre Conception and Pre Natal Diagnostic Techniques (Prohibition of Sex Selection)) Act 1994 has been suspended by the Ministry of Health and Family Welfare.

It is clarified that MoHFW has not suspended the PC&PNDT Act, which prohibits sex selection before or after conception.

In view of the ongoing lockdown, due of COVID19 pandemic, the Health Ministry has issued a Notification dated April 4, 2020 to defer/suspend certain provisions under the PC&PNDT Rules 1996. These Rules pertain to applying for renewal of registration if falling due in this period, submission of reports by diagnostics centres by 5th day of the following month and submission of quarterly progress report (QPR) by the States/UTs.

It is reiterated that each Ultrasound clinic, Genetic Counselling centre, Genetic Laboratory, Genetic Clinicand Imaging Centre would have to maintain all the mandatory records on day to day basis, as prescribed under the Law. It is only the submission deadlines to respective Appropriate Authorities which have been extended till June 30, 2020. There is no exemption (to the diagnostic centres) from compliance to the provisions of the PC&PNDT Act.

All records are mandatory and have to be maintained as per the Rules and the said Notification in no way impacts the requirement of stringent implementation of the PC&PNDT Act and Rules.”

It must be noted that this clarification, being in the form of a press

release, has no legal sanctity.

6.14 The number of girls missing at birth due to the practice of gender

biased sex selection in India has been estimated at 0.46 million girls

per year for the period 2001-12 (which is a total of 5.52 million girl

children, missing at birth for the 12 year period). A copy of a report

12

6.15

filed by the UNFPA titled “How many girls are missing at birth in

India”, Trends in Sex Ratio at Birth, has been annexed herewith and

marked as Annexure P11 (Pages 221-228).

Despite this, we see that only 3057 cases have been registered under

the PCPNDT Act. A chart depicting the state-wise break up of total

cases filed under the Act till September 2019, has been

annexed herewith and marked as Annexure P12 (Page 229). Till

September 2019, only 2220 illegal ultrasound machines were

seized under the Act. A chart depicting the state-wise break up of

machines sealed has been annexed herewith and marked as

Annexure P13 (Page 230). A total of 67084 bodies have been

registered under the Act until September 2019. A copy of the

chart depicting a state-wise breakup of registrations done under

the Act has been annexed herewith and marked as Annexure P14

(Page 231). A copy of a chart depicting the status of filing of

quarterly progress reports under Section 18 A (6) of the Rules,

has been annexed herewith and marked as Annexure P15

(Pages 232-233).

The implementation of the PCPNDT Act and Rules,

including prosecutions under the Act and other deterrent

action remains patchy and poorly implemented. The gains that

have been made, in terms of implementation of the Act, are a

result of the constant monitoring by this Hon’ble Court

though various judgments enumerated above. While certain

states are implementing the provisions of the Act and taking

punitive action thereunder, the implementation in other

states is extremely poor. In this environment, the

suspension of the 1996 Rules under the PCPNDT Act, vide the

notification dated 4.4.2020, being otherwise without jurisdiction

and a nullity, will set a bad precedent, by further

endangering the sex-ratio at birth, and resulting in many

more missing girl children.

The suspension of the Rules, vide the impugned notification, is

not permitted under the provisions of the PCPNDT Act, and is

entirely without jurisdiction and is a nullity. The Rules suspended

by the Central Government cannot be looked at in isolation, as they

are

13 connected with provisions of the PCPNDT Act, and the suspension

of Rules violates the provisions of the Act. The effect of an Act of the

parliament cannot be suspended with the aid of a notification.

Further, the selective suspension of Rules under the PCPNDT Act is

unreasonable and arbitrary because medical facilities have been

exempted under the Essential Services declared by the Government.

When the medical establishments are functioning, the maintenance of

records, submission of reports to the Appropriate authority and the

submission of quarterly reports by the Authority is a necessary

corollary of such functioning. The PCPNDT Act is not the only Act

which require records to be maintained by medical professionals, yet

the Rules under the Act have been singled out for suspension. Further,

no rationale has been given as to why the exemption provided under

this notification extends to the 30th of June, whereas, the lockdown

(as presently extended) is only in place till the 3rd of May.

Hence, this Writ Petition.

7. GROUNDS

A. BECAUSE the notification dated 4.4.2020 issued by the Department

of Health and Family Welfare, is entirely without jurisdiction and is

a nullity, in addition to being arbitrary and illegal, and has been issued

despite the fact that no such power to suspend rules temporarily is

enjoyed by the Central Government, under the scheme of the

PCPNDT Act.

B. BECAUSE when medical establishments are continuing to function

during the lockdown, then record keeping, submission of reports to

the appellate authority (under Rule 9(8)) and the submission of

quarterly reports by the appellate authority (under Rule 18 A (6)), is

a part of such functioning, and must continue. Exempting these

requirements will derail the PCPNDT Act, and will provide scope for

its misuse by letting sex determination go unchecked. The quarterly

reports permit course correction, especially where any illegality is

being carried out. Exemption from these provisions or relaxation in

14 submission timelines, will provide an opportunity for unscrupulous

individuals misusing technology.

C. BECAUSE certain key rules have been suspended as a result of this

notification, which act, as mentioned above is arbitrary, illegal and

without jurisdiction. These Rules are as follows:Rule 8: 8.Renewal of registration.-(1) An application for renewal of certificate of registration shall be madein duplicate in Form A, to the Appropriate Authority thirty days beforethe date of expiry of the certificate of registration. Acknowledgement ofreceipt of such application shall be issued by the Appropriate Authorityin the manner specified in sub-rule (2) of rule 4.(2) The Appropriate Authority shall, after holding an enquiry and aftersatisfying itself that the applicant has complied with all the requirementsof the Act and these rules and having regard to the advice of the AdvisoryCommittee in this behalf, renew the certificate of registration, as specifiedin Form B, for a further period of five years from the date of expiry of thecertificate of registration earlier granted.(3) If, after enquiry and after giving an opportunity of being heard to theapplicant and having regard to the advice of the Advisory Committee, theAppropriate Authority is satisfied that the applicant has not compliedwith the requirements of the Act and these rules, it shall, for reasons tobe recorded in writing, reject the application for renewal of certificate ofregistration and communicate such rejection to the applicant as specifiedin Form C.(4) The fees payable for renewal of certificate of registration shall be onehalf of the fees provided in sub-rule (1) of rule 5.(5) On receipt of the renewed certificate of registration in duplicate or onreceipt of communication of rejection of application for renewal, bothcopies of the earlier certificate of registration shall be surrenderedimmediately to the Appropriate Authority by the Genetic CounsellingCentre, Genetic Laboratory or Genetic Clinic.(6) In the event of failure of the Appropriate Authority to renew thecertificate of registration or to communicate rejection of application forrenewal of registration within a period of ninety days from the date ofreceipt of application for renewal of registration, the certificate ofregistration shall be deemed to have been renewed.

Rule 9: Maintenance and Preservation of Records Rule 9 (8) - (8) Every Genetic Counselling centre, Genetic Laboratory, GeneticClinic, Ultrasound Clinic and Imaging Centre shall send a completereport in respect of all pre-conception or pregnancy relatedprocedures/techniques/tests conducted by them in respect of each monthby 5th day of the following month to the concerned Appropriate Authority.Rule 18A: Code of Conduct to be observed by Appropriate Authorities-Rule 18A(6) –All the Appropriate Authorities including the State, District and Sub-District notified under the Act, inter alia, shall submit quarterly progressreport to the Government of India through State Government andmaintain Form H for keeping the information of all registrations madereadily available.

D. Because these key rules cannot be looked at in isolation. Rule 8, as a

matter of fact, is intrinsically connected with CHAPTER VI of the

15 Act. Sections 18 and 19 deal with registration of genetic counselling

centres, genetic laboratories and genetic clinics and makes it

mandatory that no clinic, laboratory or genetic clinic can function

without registration under the Act:

REGISTRATION OF GENETIC COUNSELLING CENTRES, GENETIC LABORATORIES AND GENETIC CLINICS

18. Registration of Genetic Counselling Centres, Genetic Laboratoriesor Genetic Clinics.

1. No person shall open any Genetic Counselling Centre, GeneticLaboratory or Genetic Clinic, including clinic, laboratory or centrehaving ultrasound or imaging machine or scanner or any othertechnology capable of undertaking determination of sex of foetus and sexselection, or render services to any of them, after the commencement ofthe Pre-natal Diagnostic Techniques (Regulation and Prevention ofMisuse) Amendment Act, 2002 unless such centre, laboratory or clinic isduly registered under the Act.

2. Every application for registration under sub-section (1), shall be made tothe Appropriate Authority in such form and in such manner and shall beaccompanied by such fees as may be prescribed.

3. Every Genetic Counselling Centre, Genetic Laboratory or Genetic Clinicengaged, either partly or exclusively, in counselling or conducting pre-natal diagnostic techniques for any of the purposes mentioned in section4, immediately before the commencement of this Act, shall apply forregistration within sixty days from the date of such commencement.

4. Subject to the provisions of section 6, every Genetic Counselling Centre,Genetic Laboratory or Genetic Clinic engaged in counselling orconducting pre-natal diagnostic techniques shall cease to conduct anysuch counselling or technique on the expiry of six months from the dateof commencement of this Act unless such Centre, Laboratory or Clinichas applied for registration and is so registered separately or jointly ortill such application is disposed of, whichever is earlier.

5. No Genetic Counselling Centre, Genetic Laboratory or Genetic Clinicshall be registered under this Act unless the Appropriate Authority issatisfied that such Centre, Laboratory or Clinic is in a position to providesuch facilities, maintain such equipment and standards as may be pre-scribed.

19. Certificate of registration.-

1. The Appropriate Authority shall, after holding an inquiry and aftersatisfying itself that the applicant has complied with all the requirementsof this Act and the rules made thereunder and having regard to the adviceof the Advisory Committee in this behalf, grant a certificate of registrationin the prescribed form jointly or separately to the Genetic CounsellingCentre, Genetic Laboratory or Genetic Clinic, as the case may be.

2. If, after the inquiry and after giving an opportunity of being heard to theapplicant and having regard to the advice of the Advisory Committee, theAppropriate Authority is satisfied that the applicant has not compliedwith the requirements of this Act or the rules, it shall, for reasons to berecorded in writing, reject the application for registration.

3. Every certificate of registration shall be renewed in such manner andafter such period and on payment of such fees as may be prescribed.

4. The certificate of registration shall be displayed by the registered GeneticCounselling Centre, Genetic Laboratory or Genetic Clinic in aconspicuous place at its place of business.

16 Further, Section 23 of the Act prescribes a penalty for contravention

of the Act or the Rules. Section 23 reads as follows: 23. Offences and penalties.- (1) Any medical geneticist, gynaecologist,registered medical practitioner or any person who owns a GeneticCounselling Centre, a Genetic Laboratory or a Genetic Clinic or isemployed in such a Centre, Laboratory or Clinic and renders hisprofessional or technical services to or at such a Centre, Laboratory orClinic, whether on an honorary basis or otherwise, and who contravenesany of the provisions of this Act or rules made thereunder shall bepunishable with imprisonment for a term which may extend to three yearsand with fine which may extend to ten thousand rupees and on anysubsequent conviction, with imprisonment which may extend to five yearsand with fine which may extend to fifty thousand rupees.

(2) The name of the registered medical practitioner shall be reported by theAppropriate Authority to the State Medical Council concerned for takingnecessary action including suspension of the registration if the charges areframed by the court and till the case is disposed of and on convic- tion forremoval of his name from the register of the Council for a period of fiveyears for the first offence and permanently for the subsequent offence.

(3) Any person who seeks the aid of a Genetic Counselling Centre, GeneticLaboratory, Genetic Clinic or ultrasound clinic or imaging clinic or of amedical geneticist, gynaecologist, sonologist or imaging specialist orregistered medical practitioner or any other person for sex selection or forconducting pre- natal diagnostic techniques on any pregnant women forthe purposes other than those specified in sub-section (2) of section 4, heshall, be punishable with imprisonment for a term which may extend tothree years and with fine which may extend to fifty thousand rupees for thefirst offence and for any subsequent offence with imprisonment which mayex- tend 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 provisions of sub-section (3) shall not apply to the woman who was compelled to undergosuch diagnostic techniques or such selection.

Section 25 provides a penalty for the contravention of provisions of

the Act or the Rules for which no specific punishment is provided.

25. Penalty for contravention of the provisions of the Act or rules forwhich no specific punishment is provided.- Whoever contravenes any ofthe provisions of this Act or any rules made thereunder, for which nopenalty has been elsewhere provided in this Act, shall be punishable withimprisonment for a term which may extend to three months or with fine,which may extend to one thousand rupees or with both and in the case ofcontinuing contravention with an additional fine which may extend to fivehundred rupees for every day during which such contravention continuesafter conviction for the first such contravention.

That non-compliances of Sections 18 and 19 (which are connected to

Rule 8) also result in a penalty under Section 23 and 25 of the Act.

Further, the record keeping provisions under the Rules, including

Rule 9(8) and Rule 18 A (6), are intrinsically connected to the proviso

to Section 4 (3) under the PCPNDT Act. The said provision reads as

follows:

17 4. Regulation of pre-natal diagnostic techniques. - On and from thecommencement of this Act,—

…….

3. no pre-natal diagnostic techniques shall be used or conducted unless theperson qualified to do so is satisfied for reasons to be recorded in writingthat any of the following conditions are fulfilled, namely:—

……

Provided that the person conducting ultrasonography on a pregnant woman shall keep complete record thereof in the clinic in such manner, as may be prescribed, and any deficiency or inaccuracy found therein shall amount to contravention of provisions of section 5 or section 6 unless contrary is proved by the person conducting such ultrasonography;

(emphasis supplied)

The mandatory provision of the Act cannot be diluted by the Rule

or administrative action. The impugned Notification is entirely

without jurisdiction, null and void.

E. BECAUSE this Hon’ble Court has, from time to time, monitored the

implementation of the PCPNDT Act. Proper and timely keeping of

records has a central role to play in the scheme of the Act. In the

FOGSI (supra) case, this Hon’ble Court observed that proper

maintenance of records is mandatory. The relevant portion of the

judgment is extracted below for the convenience of this Hon’ble

Court:

“98. Non-maintenance of record is springboard 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 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 Centre, Genetic Laboratory or Genetic Clinic, by the appropriate authority as provided under Section 20 of the Act.”

(Emphasis supplied)

F. Because one of the first cases in which this Hon’ble Court took stock

of the lack of implementation of the Act was the case of Centre for

Enquiry into Health & Allied Themes (CEHAT) v. Union of India,

(2001) 5 SCC 577, wherein this Hon’ble Court noted that “it is

apparent that to a large extent, the PNDT Act is not implemented by

18 the Central Government or by the State Governments. Hence, the

petitioners are required to approach this Court under Article 32 of

the Constitution of India.” In the CEHAT case, this Hon’ble court

passed orders for better implementation of the Act. The

implementation of the PCPNDT Act was again before this Hon’ble

Court in the case of Voluntary Health Association of Punjab vs.

Union of India, reported in (2013) 4 SCC 1. In this case, this

Hon’ble Court observed that “we notice that even though the Union

of India has constituted the Central Supervisory Board and most of

the States and Union Territories have constituted State Supervisory

Boards, Appropriate Authorities, Advisory Committees, etc. under

the Act, but their functioning are far from satisfactory.” After taking

into account the implementation status of the PCPNDT Act in

various States and Union territories and after taking into account the

stand of the Union of India, inter alia, directions were passed for the

better implementation of the Act including a direction that;

9.4. The authorities should ensure also that all genetic counselling centres, genetic laboratories and genetic clinics, infertility clinics, scan centres, etc. using pre-conception 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 concerned, in accordance with Rule 9(8) of the Rules. Communicate this order to the Registrars of various High Courts, who will take appropriate follow-up action with due intimation to the courts concerned.”

G. BECAUSE this Hon’ble Court in the case of Voluntary Health

Association of Punjab vs. Union of India, reported in (2015) 9

SCC 740, after taking into account the implementation status of the

PCPNDT Act in various States and Union territories and after taking

into account the stand of the Union of India, inter alia, passed the

following directions qua Rule 18-A (6) :

45. At this juncture, we must note with profit that Ms Anitha Shenoy,learned counsel who is appearing for Dr Sabu George, the newlyimpleaded party, submits that the appropriate authorities are notfollowing the mandate enshrined under Rule 18-A of the Pre-Conceptionand Pre-Natal Diagnostics Techniques (Prohibition of Sex Selection)Rules, 1996 (for brevity “the Rules”). She has drawn our attention to sub-rule (6) of Rule 18-A. It reads as follows:

“18-A. (6) All the appropriate authorities including the State, districts, sub-districts notified under the Act, inter alia, shall submit quarterly progress report to the Government of India

19 through the State Government and maintain Form H for keeping the information of all the registrations made readily available.”

In view of the aforesaid Rule, it is directed that all the appropriate authorities including the State, districts and sub-districts notified under the Act shall submit quarterly progress report to the Government of India through the State Government and maintain Form H for keeping the information of all registrations readily available.

(emphasis supplied)

In the case of Voluntary Health Assn. of Punjab v. Union of India

reported in (2016) 10 SCC 265, this Hon’ble Court passed the

following directions (which dealt with, inter alia, compliance with

Rule 18 A (which has been suspended by the impugned notification):

44.4. The provisions contained in Sections 22 and 23 shall be strictly adhered to. Section 23(2) shall be duly complied with and it shall be reported by the authorities so that the State Medical Council takes necessary action after the intimation is given under the said provision. The appropriate authorities who have been appointed under Sections 17(1) and 17(2) shall be imparted periodical training to carry out the functions as required under various provisions of the Act.

……. 44.14. All the appropriate authorities including the States and districts notified under the Act shall submit quarterly progress report to the Government of India through the State Government and maintain Form H for keeping the information of all registrations readily available as per sub-rule (6) of Rule 18-A of the Rules.

….. Thus, it is clear that this Hon’ble Court’s orders, had been a driver

behind proper implementation of the PCPNDT Act and the Rules

therein. This Hon’ble Court has time and again passed orders on the

importance of and the mandatory nature of record keeping, and how

all the provisions of the PCPNDT Act and Rules thereunder are

intrinsically connected and interlinked.

H. BECAUSE in FOGSI Case (Supra) this Hon’ble Court noted the

importance of record keeping in the following words:It is rightly contended on behalf of the respondents that there are different forms for record keeping prescribed under the Act and the Rules, they are important and interlinked, operate in tandem with one another……. 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 identifying offence and the accused. The inspection of records is crucial to identify wrongdoers 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.

(emphasis supplied)

20 I. BECAUSE in the FOGSI Case (supra), this Hon’ble Court also

noted that the PCPNDT Act was not the only Act that requires

medical professionals to maintain records. The relevant portion of

the judgment is extracted below for the convenience of this Hon’ble

Court:“58. 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 the Medical Council of India that the Medical Council of India (MCI) under 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-maintaining of records is a misconduct. MCI Regulation 1.3 deals with maintenance of medical records, which reads thus: ….. 61. It is further pointed out that the Pharmacy Practice Regulations, 2015also require pharmacists to maintain records. The relevant portion of theRegulations is extracted hereunder:….. 62. Reference has also been made to the provisions of the Transplantationof Human Organs and Tissues Act, 1994 and Rules, which containprovisions that are similar to the Act. Section 20 of the Transplantation ofHuman Organs and Tissues Act, 1994, reads thus:

…. (emphasis supplied)

Despite the requirement for maintenance of records being a standard

feature of laws regulating medical practices, in the present instance,

the PCPNDT Rules have been arbitrarily selected and suspended,

under the guise of the lockdown. This action rolls back the gains made

by the proper implementation of the Act by this Hon’ble Court, and

is arbitrary and unreasonable. Thus, the impugned notification is also

in the teeth of various orders passed by this Hon’ble Court.

J. BECAUSE the Central Government, through the Department of

Health and Family Welfare, has erred in exempting the

doctors/facilities from complying with the provisions of the

aforementioned Rules, by temporarily suspending the Rules under the

Act. Such a power to suspend is not provided in the scheme of the

Act. The impugned notification claims that it derives such a power

from Clause (iv c) of Sub-section 2 of Section 32 of the PCPNDT

Act. Section 32 sub-section 2 reads as follows:

21

32. Power to make rules.-

2. The Central Government may make rules for carrying out the provisions of this Act.

3. In particular and without prejudice to the generality of the foregoing power, such rules may provide for—

(ivc) empowering the Appropriate Authority in any other matter under clause (d) of section 17A;

Section 17 A of the PCPNDT Act, reads as follows:

17A. Powers of Appropriate Authorities.- The Appropriate Authority shall have the powers in respect of the following matters, namely:-

a) summoning of any person who is in possession of any information relating to violation of the provisions of this Act or the rules made thereunder;

b) production of any document or material object relating to clause (a);

c) issuing search warrant for any place suspected to be indulging in sex pre-natal sex determination; and

d)any other matter which may be prescribed.

(emphasis supplied)

In view of the above, it is evident that the PCPNDT Act does not give

any powers for the temporary suspension of Rules to the Central

Government. The phrase ‘any other matter which may be prescribed’

has to be interpreted ejusdem generis with the remaining provisions

of Section 17 A.

K. BECAUSE requirements prescribed under the PCPNDT Act have

been necessitated only because of the extraordinary circumstances of

misuse by doctors leading to rampant sex determination, consequent

sex selective abortions and resultant low child sex ratio prevailing in

our country. It is in this background that registration of various

facilities using ultrasound machines and record-keeping provisions

have to be viewed. Such provisions cannot be given a short shrift

merely due to the fact that a lockdown is prevailing, especially given

that the PCPNDT Act does not permit the suspension of the rules

framed thereunder, and hospitals and medical establishments are

continuing to function during the national lockdown.

22

L. BECAUSE in Babu Verghese v. Bar Council of Kerala, (1999) 3

SCC 422, this Hon’ble Court reiterated the basic principle of law long

settled that if the manner of doing a particular act is prescribed under

any statute, the act must be done in that manner or not at all. The

origin of this rule is traceable to the decision

in Taylor v. Taylor [(1875) 1 Ch D 426: 45 LJCh 373] which was

followed by Lord Roche in Nazir Ahmad v. King Emperor [(1936) 63

IA 372: AIR 1936 PC 253] who stated as under:

“[W]here a power is given to do a certain thing in a certain way,

the thing must be done in that way or not at all.”

Thus, we see that while Section 32 of the PCPNDT Act, read with

Section 17 A therein contemplates the framing of Rules, it does not

contemplate “temporary suspension” of such Rules. Thus, the

notification dated 4.4.2020 is wholly without jurisdiction and a

nullity.

M. BECAUSE the Act of the Central Government in suspending the

Rules under the PCPNDT Act suffer from the vice of arbitrariness,

and violates Article 14 of the Constitution. These Rules have been

singled out for suspension, despite the fact that the PCPNDT Act is

not the only Act requiring detailed record keeping by medical

professionals. Further there is no explanation of why the suspension

is to operate till June 30th, 2020 when the lockdown ends on the 3rd of

May, 2020.

8. The Petitioner craves leave to raise any other additional grounds,

other than the ones mentioned above, should the need arise.

9. MAIN PRAYER

It is most respectfully prayed that this Hon’ble Court may graciously

be pleased to:

(A) Pass any order/ direction quashing the notification dated

4.4.2020 issued by the Department of Health and Family

Welfare whereby Rule 8, 9(8) and 18 A (6) of the Pre-

Conception and Pre-Natal Diagnostic Techniques (Prohibition