State Chapter vs 5 State Appropriate Authority
2011 Latest Caselaw 72 Bom

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     SRS.




                                                                     
             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 ORDINARY ORIGINAL CIVIL JURISDICTION




                                             
                      WRIT PETITION (L) NO.1939/2011


     Radiological & Imaging Association




                                            
     (State Chapter),through Dr.Jignesh Gokuldas
     Thakker, its PC-PNDT Co-ordinator for the
     Indian Radiological & Imaging Association,
     having its office at C/o Shri.Sai Diagnostic
     Centre, Post Office Road,Jalna,




                                 
     Maharashtra State                            ...            Petitioner

            Vs.
                    
                   
     1      Union of India & Ors.
            Through Secretary,Ministry of
            Health and Family Welfare, Nirman
            Bhawan, New Delhi 110 001
      


     2      State of Maharashtra,
            Through its Secretary, Ministry
   



            of Health and Family Welfare,
            Having his address at Mantralaya,
            Mumbai.





     3      Medical Officer of Health,
            Brihanmumbai Mahanagarpalika,
            Dahisar Ward, Mumbai.

     4      Additional Director,





            Health Services, Kutumb Kalyan
            Bhavan, PNDT Division, Pune

     5      State Appropriate Authority,
            Arogya Bhavan, Mumbai               ....    Respondents




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     Ms.Anita Bhaktwani for petitioner
     Mr.A.M.Sethna for U.O.I.




                                                                         
     Mr.N.P.Pandit,AGP for Res.2 and 5
     Ms.Gharpure for BMC
     Mr.Uday P.Warunjikar for Intervener




                                                 
                               CORAM: P.B.MAJMUDAR &




                                                
                                         MRS.MRIDULA BHATKAR, JJ.

DATE: 17th November,2011

ORAL JUDGMENT (Per P.B.Majmudar,J.)

Rule.

2 Rule returnable forthwith. With the consent of the parties the

petition is heard finally at the stage of admission.

3 This petition is filed by Radiological & Imaging Association (State

Chapter) challenging the decision dated 28/7/2011 taken by the

Appropriate Authority i.e. the Medical Health Officer of Dahisar Ward.

The petitioner has also prayed that Respondent nos.2 to 5 may be

directed to frame appropriate guidelines as regards the circumstances

and manner of sealing the machinery and the modus operandi for

removal of the seal by way of clarification of the provisions of Section

30 of the Pre-Conception and Pre-Natal Diagnostics Techniques

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(Prohibition of Sex Selection) Act, 2003 (Act 14 of 2003)(for short PC-

PNDT Act). According to the petitioner, when the portable ultra sound

Sonography machine is permissible for treating the patients, direction

given by the Officer restraining the members of the Petitioner-

Association from taking the machine out of the premises of the

institution is arbitrary, illegal, and in violation of Articles 14 and 21 of the

Constitution of India.

On behalf of the petitioner, learned counsel Ms.Bhaktwani

vehemently argued that portable sonography machine is available in

view of the modern technology. A patient whose physical condition is

serious and if he is unable to travel immediately to the hospital, he can

get the medical benefit immediately, if he is subjected to sonography in

a given case at his residence. It is submitted that it is not open for the

Authority to restrict the portable sonography machine as according to

her sonography machine is meant for taking it from one place to

another like a laptop. Learned counsel further vehemently submitted

that such type of restriction is de-hors the provisions of PC-PNDT Act,

1994. It is submitted that in a given case there may be a patient who

may not be pregnant lady and in such case also it is necessary to do

sonography of such patient and if there is restriction on the movement

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of a portable sonography machine such patient will be deprived of

getting the benefit of sonography immediately. It is submitted that the

restriction is based on an apprehension of misuse of such portable

machine, however, such misuse is possible in the clinic itself. It is

submitted that the impugned communication is not consistent with the

provisions of law. The restrictions imposed are without any authority of

law and in view of the same the impugned communication is required

to be set aside and this Court may ask the concerned authority to

frame the guidelines in this behalf. Union of India as well as the State

of Maharashtra should frame the guidelines in this behalf and they

should frame appropriate policy decision regarding the sealing of all

sonography machines.

5 Mr.Sethna, learned counsel appearing for Union of India

submitted that the concerned officer of the Corporation has taken

correct decision by restricting the transportation of such ultra sound

sonography machine out side the said Institute as according to him if

such transportation is permitted, there is every chance of such

machines being misused with a view to find out the sex of the child in

the womb. It is submitted by Mr.Sethna that so far as the sonography is

concerned, it cannot be said that the patient cannot go to a particular

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hospital or clinic for getting done the sonography and it is not such an

urgent thing that the patient cannot wait. It is submitted that there is

likelihood of misuse if sonography machine is required to be taken out

side the Institute or the Hospital as in a given case it will not be

possible for the authority to monitor this aspect and such machine if

taken to the residence of a patient or a pregnant lady for determination

of sex of a foetus, and it comes to the knowledge of such lady, there is

every possibility that it may result in removal of female foetus by

termination of pregnancy. It is submitted that considering the provisions

of the Act such prevention is justified to prevent such abuse. The

submissions are on the basis of the instructions received by him from

the Ministry of Health and Family Welfare.

6 Mr.Pandit, learned AGP, vehemently opposed the petition.

It is submitted that there are all chances of misuse if the portable

sonography machine is allowed to be taken out of the Institute and if

there is some apprehension that the machine is likely to be misused,

there is nothing wrong on the part of the concerned officer who issued

such communication.

7 Mr.Warunjikar appearing for newly added respondent no.5

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who is social worker and member of National Level Monitoring

Committee established under the Act, argued that, if such portable

sonography machine is allowed to be taken out of the Institute there is

great danger of it being misused. He states that in the city of Mumbai

sex ratio of male and female has come down by 30% in last 10 years

and now the actual ratio is 1000 boys and 880 girls. It is submitted that

it is in the interest of the society that this portable sonography machine

should not be allowed to be misused as some may take disadvantage

of such a machine only with a view to identify the sex of the child in

womb.

8 We have heard the learned counsel at length. The

principal question which is required to be considered is "whether the

direction issued by the concerned officer at Page -74 is required

to be interfered with by this Court and as to whether such

direction is justified or it will infringe the fundamental rights of the

Petitioner-Association ? "

9 At this stage reference of provisions of PC PNDT Act,1994

is required to be made. At the time of amending the Act the relevant

provisions of the Act are amended as follows.

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Amendment Act 14 of 2003- Statement of Objects and

Reasons-

1 The Pre-natal Diagnostic Techniques (Regulation and

Prevention of Misuse) Act, 1994 seeks to prohibit pre-natal diagnostic techniques for determination of sex of the foetus leading to female foeticide. During recent years, certain inadequacies and practical difficulties in the administration of the

said Act have come to the notice of the Government, which has necessitated amendments in the said Act.

2 The pre-natal diagnostic techniques like amniocentesis and

sonography are useful for the detection of genetic or chromosomal disorders or congenital malformations or sex linked

disorders,etc.. However, the amniocentesis and sonography are being used on a large scale to detect the sex of the foetus and to terminate the pregnancy of the unborn child if found to be female.

Techniques are also being developed to select the sex of child before conception. These practices and techniques are considered discriminatory to the female sex and not conducive to the dignity of the woman.

The impugned order is pertaining to the institute is covered

under the definition of "Genetic Clinic", which reads as follows.

" Genetic Clinic" means a clinic, institute, hospital, nursing

home or any place, by whatever name called, which is used for conducting pre-natal diagnostic procedure. Explanation- For the purposes of this clause, "Genetic Clinic" includes a vehicle, where ultrasound machine or

imaging machine or scanner or other equipment capable of determining sex of the foetus or a portable equipment which has the potential for detection of sex during pregnancy or selection of sex before conception, us used ;

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10 It is required to be noted that it is a very sorry state of affairs that

even today in our country people are trying to undertake the

determination of sex of the child in womb. Unfortunate tendency is

going on in various parts of the country to discourage the birth of

female child. No society can exist without a woman and for the growth

of the human race and nation men and women both are equally

important. It may be true as argued by the counsel for the petitioner

that even if few bad elements in the society who are indulged in such

activitiy of sex determination and removing foetus from the womb, the

axe should not fall on all. However, it is required to be noted that the

only scientific way which will be available to cut the possible abuse is

by enacting proper law, rules and guidelines in that behalf. Possibility

cannot be ruled out of misuse of such machine if it is taken out of the

Institute for the sole purpose of sex determination in the womb. It is

required to be noted that ultra sonography is a diagnostic technique

which utilizes sound waves and reflections. It is not a medicine and

the said machine does not provide any treatment to the patient.

Considering the same, in our view t in a case where a patient cannot

wait till he is taken to the particular clinic for sonography and the

portable machine has been taken to this residence, the possibility of

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evil and misuse cannot be ruled out. In our view, if the society is fully

made conscious and change in attitude takes place to forget the

distinction between male and female, till then all remedial measures

are required to be taken to curb the misuse of modern technology

which is likely to be misused to achieve the dishonest and illegal

purpose. It may be true as argued by the counsel for the petitioner that

even in an Institute also there are possibility of such misuse of

sonography machine. So far as the hospitals are concerned, even if a

particular doctor is doing illegal activities, it is at his own risk and

appropriate data is available in such a case which cannot be possible if

the machine is taken out of the principal place.

11 Considering such aspect, in our view the direction issued

by the Authority is in consonance with the provisions of the Act and

only with a view to prevent possible misuse of such machine. It cannot

be disputed that such a machine can be utilised for prenatal diagnosis

even at the place where the machine is taken outside the clinic. It is

required to be noted that ultra sonography is one of the prenatal

diagnosis technique as prescribed under the Act. As pointed out earlier,

unfortunately there are cases where such techniques are being

misused to detect sex of the foetus and termination of pregnancy of

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unwanted female child. In our view even if there is only one case out

of millions this Court may not interfere with such a policy decision

which in our view is the most scientific and in the interest of the society.

Considering the said aspect, it cannot be said that any fundamental

right either under Article 14 or 19 is violated as the Petitioner-

Association can carry out its activity within the Institute itself and at the

recognized place. The restriction imposed by the concerned officer is

the most reasonable and in public interest and does not violate the

fundamental right of the petitioner in any manner. Ultimately the public

interest at large is required to be taken into account and the decision

taken by the concerned officer is in consonance with the provisions of

the Act.

12 The MHO, an appropriate, authority under the Act has

issued these directions under sections 17 and 17-A of the Act in

respect of implementation of the Act. Thus, the directions are issued

by the MHO on the basis of his experience and the collection of data of

the instances he had come across of the mis use of the ultra sound

sonography machine. In the notice, MHO has mentioned that the

movement or shifting of the said machine is not permissible. For the

purpose of understanding the word " institute" we have to refer the

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definition of Genetic Clinic under Section 2(d) (supra). Thus, the

movement of the machine is prohibited qua Act. It is to be noted that

the State and the Appropriate Authority are taking various steps to

prevent the misuse of the machine used by the radiologist. We gainfully

refer to the judgment delivered by the Division Bench of this Court

dated 26/8/2011 in W.P. No.797/2011 filed by Radiological and

Imaging Association (State Chapter- Jalna) Vs.Union of India and Ors..

A circular was issued by the Collector and the District Magistrate of

Kolhapur on 10/3/2010 whereby all the radiologists and sonologists

were called upon to install a device "silent observer" in their ultra sound

sonography machine to identify and prevent the illegal use of the said

machine for sex determination. Said instructions were challenged in

the Writ Petition. The Division Bench upheld the instructions and

dismissed the petition. Thus, the directions given by the MHO in the

notice under challenge in the present case are consistent with the

provisions and the object of the Act. It is made clear that this notice and

our decision are applicable to the machines in the institutes and

genetic clinics as mentioned under the Act. The direction given by the

concerned officer is, therefore, in public interest and in consonance

with the provisions of the Act.

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13 Learned AGP states that the direction is applicable to the

entire State of Maharashtra though such restrictive order is passed by

the Ward Officer,Dahisar. Mr.Sethna states that as per the stand taken

by the Ministry of Health, the decision taken by the concerned officer is

in accordance with law and for the rest of the part of the Country,

appropriate directions may be issued in this behalf which will not

restrict only a particular State but it will be applicable uniformally to the

whole country. Since this stand is taken by the Government of India, it

is for the concerned Ministry to act as it deems fit and we are not

required to say anything in this behalf.

14 At this stage Mr.Warunjikar placed on record copy of Chart

declaring the sex ratio as per the Census-2011 report.

For what is stated above, the petition is dismissed.

Rule discharged.

( MRS.MRIDULA BHATKAR, J. ) ( P.B.MAJMUDAR, J. )

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