Allahabad High Court
Dr. Dwarika Prasad vs State Of U.P. And 4 Others on 17 May, 2013
Bench: Sunil Ambwani, Manoj Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Judgment reserved on 18.04.2013 Judgment delivered on 17.05.2013 Civil Misc. Writ Petition No.21395 of 2013 Dr Dwarika Prasad v. State of U.P. & Ors. Hon. Sunil Ambwani, J.
Hon. Manoj Kumar Gupta, J.
1. We have heard Shri S.P. Giri, learned counsel for the petitioner. Learned Standing Counsel appears for the State respondents.
2. The petitioner is a qualified and registered medial practitioner. He also claims to have undergone training in Ultrasonography in the year 1997 at Indian College of Medical Ultrasound, which is running basic ultrasound training course in OBC & GYN Sonography. He owns Ultrasound machine and is providing ultrasound test facilities in the name of 'Ashish Ultrasound and X-rays Center' Hospital Road Padrauna District Kushi Nagar since 2003.
3. In this writ petition the petitioner has prayed for quashing the order dated 16.3.2013 passed by the District Magistrate/ Appropriate Authority, Kushi Nagar by which he has cancelled License No.01 dated 29.12.2006 granted to 'Ashish Ultrasound and X-rays Center Hospital Road Padrauna District Kushi Nagar', to run the Ultrasound Test Center on the grounds that the petitioner has violated the provisions of Section 4 (3) of the 'Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex and Selection) Act, 1994 (PC & PNDT Act, 1994) and Rule 9 (4) and Rule 10 (1-A) of the Rules framed under the Act.
4. It is stated by learned counsel for the petitioner that the petitioner is running Ultrasound Centre since 2003 without any complaint from any person. He is submitting statutory returns and forms to the satisfaction of the registration authority. The petitioner claims to be a highly qualified medical practitioner with MBBS (1968) and M.S. (1971) Degrees and experience in ultrasonography. He maintains records in accordance with the provisions of the Act and the Rules and has published a public notice by putting up a board in front of his clinic that there is restriction of diagnosis for sex selection by ultrasound machine, which amounts to an offence.
5. It is submitted that a news report was published by Dr. Neelam Singh, a gynecologist, an activist associated with 'Save the Girl Child' reporting the sex ratio in Distt. Kushi Nagar is 694 girls to 1000 boys, as against the national sex ratio of 940 girls to 1000 boys. The report is not authentic and was published to give a wrong information to the people of Distt. Kushinagar. The report is also highly improbable and much below the census report of 2011, which gives sex ratio of 955/1000. The report published by Dr. Neelam Singh was neither seen nor placed before the appropriate authority particularly before the Advisory Board or the Advisory Committee. The district administration appears to be falsely alarmed by the report and decided to take action. On 16.2.2013 the Chief Medical Officer and the Sub Divisional Magistrate, Kushi Nagar inspected the petitioner's clinic and without calling for any explanation from the petitioner sealed the clinic unauthorisedly by an illegal and arbitrary action. A show cause notice was, thereafter, issued to the petitioner on 19.2.2013 referring to the inspection dated 16.2.2013, seeking his explanation with regard to use of ultrasound machine in his clinic. The petitioner submitted his reply on 27.2.2013, which was duly received by the District Magistrate. In his reply the petitioner submitted that vague allegations have been levelled against him that he has not complied with the provisions of Section 4 (3), 9 (1), 9 (4) and 10 (1-A) of the PC & PNDT Act, 1994 and that Form-F was not properly maintained.
6. It is submitted by learned counsel for the petitioner that the petitioner has been maintaining all the forms as prescribed under the Act and the Rules, and as a qualified and registered medical practitioner he has right to run the clinic. The entire action was illegal, arbitrary and unjustified.
7. It is further submitted by learned counsel appearing for the petitioner that the allegations against the petitioner are only confined to the non-maintenance of the records under Rule 9 and 10 of the PC & PNDT Rules. The petitioner had not only given detailed reply to the show cause notice but had also offerred to produce the entire record. The petitioner has submitted that he uses ultrasound machine for clinical examination of the patients for diagnosis for stomach and other ailments. The monthly report is sent to the Chief Medical Officer giving the date, name, age, father/husband's name, address, name of the referral doctor with signature or thumb mark of each patient. A warning is also published by the petitioner on the notice board in his clinic that the ultrasound test is not used in the clinic for determination of sex.
8. The petitioner in his reply dated 27.2.2013 prayed for withdrawing the notice, return of the records and to deseal his clinic. The District Magistrate, however, instead of considering the reply after giving the details of the female to male ratio in the district, based only on the allegations that the petitioner is not maintaining the records properly, cancelled the license. It is submitted that the order cancelling the license is founded upon the facts and figures of which notices were not given to the petitioner nor is the petitioner responsible for any sex determination and the abortions, which may have reduced the sex ratio in the district. It is submitted that the sex ratio in the district is also not authentic and could not have been used to cancel the petitioner's license. The petitioner is qualified and authorised medical practitioner. His fundamental right to profession has been affected by Art.19 (1) (g) of the Constitution of India without any reasonable basis and following due process of law.
9. We have examined the show cause notice and the replies submitted by the petitioner and find that the petitioner has admitted in para 4 of his reply that he did not submit reports on the prescribed format (Form-F). In para 5 of his reply dated 27.2.2013 the petitioner has stated that the Chief Medical Officer did not inform him in any of the meeting that the reports have to be sent on the format (Form-F). The office of the Chief Medical officer never objected to the submission of the reports by the petitioner on the ground that they are not on the prescribed format (Form-F). In para 7 of his reply the petitioner stated that the entire records available with him were provided to the Chief Medical Officer on the date of inspection on 16.2.2013, which was taken in possession and the clinic was sealed without giving any receipt of the record.
10. The petitioner has annexed the news items published in ''Times of India' dated 22nd March, 2013 reporting the acting taken in District Kushi Nagar against the ultrasound clinics. The news report shows that in the day long crackdown launched by District Magistrate Shri Rigzin Sampheal, the inspecting party sealed nine ultrasound centres after ''Times of India' reported about the district recording lowest sex ratio at birth in the country in the wake of these test centres that have mushroomed all over the place. Out of 65 ultrasound centres in the district 60% has come up in the last five years. The report further states that comparing the 0-6 years female; male ratio between census 2001 and 2011, sex ratio in Kushinagar recorded a decline of 38 points.
11. The petitioner has annexed the Kushi Nagar District Population Census, 2001, Uttar Pradesh, literacy, sex ratio and density in which sex ratio (per 1000) child, sex ratio (0-6 age) is reported as 955 as against 963 in the year 2001. Dr. Nileema Singh reported fall of sex ratio far below the ratio shown in the census at 917 in the year 2011 per 1000 male as against 953 per 1000 male in the year 2001. The District Magistrate has quoted this ratio in the opening paragraph of the impugned order as follows:-
"The comparative census for the year 2001 and 2011 for district Kushinagar stands as noted below:2011 2001
Male and female ratio in total population of district 1000 955 1000 960 Population of 0 to 6 years children 1000 917 1000 953"
12. The District Magistrate has shown his concern at the drastic fall in the number of female per thousand male in District Kushinagar and has observed that this shocking reduction in the percentage of girl child during last census is complimented by reports of large scale anomalies and non-compliance of required norms under PC & PNDT Act by various ultrasound clinics in the district. As per the report of the Chief Medical Officer, Kushinagar dated 12.2.2013 out of 65 registered ultrasound centres running in the district none has submitted the records as required under Section 29 and Rule 9 (4) under the PC & PNDT Act. Bases on these facts the District Magistrate found that there is strong possibility of hidden relation between mushrooming number of ultrasound clinics and the shocking fall in the percentage of girl child in District Kushinagar, which demanded immediate inspection of ultrasound clinics. The severity of the problem in the district can be assessed from the fact that the district stand at 67th position out of 71 districts surveyed for sex ratio in the State of U.P.
13. The District Magistrate carried out random inspections of 22 ultrasound centres across the district by team consisting of government doctors and support staff from the revenue department. In the case of 'Ashish Ultrasound and X-ray Centre', Hospital Road, Padrauna, run by the petitioner the inspection was made by team of Chief Medical Officer Dr. Sanjeev Kumar Gupta and S.D.M. Shri B.L. Maurya on 16.2.2013. The team reported that Dr. D.P. Agrawal-the petitioner was present in the clinic. He had shown the equipment but did not produce the registration certificate. The maintenance of records was not found in accordance with the Rules and thus the clinic was sealed. On the basis of the inspection report dated 16.2.2013 a show cause notice was issued on 19.2.2013 to which the petitioner submitted a reply of which paragraphs 4, 5 and 6 have been referred to as above and on which it was found that the petitioner is not furnishing records on prescribed Form-F.
14. The District Magistrate has, thereafter, referred to the provisions of Section 20 and 29 of the PC & PNDT Act and Rule 9 of PC & PNDT Rules, which provide as follows:-
"20. Cancellation or suspension of registration.- (1) The Appropriate Authority may suo moto, or on complaint, issue a notice to the Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic to show cause why its registration should not be suspended or cancelled for the reasons mentioned in the notice.
(2) If, after giving a reasonable opportunity of being heard to the Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic and having regard to the advice of the Advisory Committee, the Appropriate Authority is satisfied that there has been a breach of the provisions of this Act or the rules, it may, without prejudice to any criminal action that it may take against such Centre, Laboratory or Clinic, suspend its registration for such period as it may think fit or cancel its registration, as the case may be.
(3) Notwithstanding anything contained in sub-sections (1) and (2), if the Appropriate Authority is, of the opinion that it is necessary or expedient so to do in the public interest, it may, for reasons to be recorded in writing, suspend the registration of any Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic without issuing any such notice referred to in sub-section (1).
29. Maintenance of records. (1) All records, charts, forms, reports, consent letters and all other documents required to be maintained under this Act and the rules shall be preserved for a period of two years or for such period as may be prescribed:
Provided that, if any criminal or other proceedings are instituted against any Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic, the records and all other documents of such Centre, Laboratory or Clinic shall be preserved till the final disposal of such proceedings.
(2) All such records shall, at all reasonable times, be made available for inspection to the Appropriate Authority or to any other person authorised by the Appropriate Authority in this behalf.
Rule 9. Maintenance and preservation of records
4. The record to be maintained by every Genetic Clinic including a Mobile Genetic Clinic, in respect of each man or woman subjected to any pre-natal diagnostic procedure/ technique/ test, shall be as specified in form F."
15. The petitioner has filed a supplementary affidavit affirmed by him on 17.4.2013, stating therein that no appropriate opportunity of hearing was afforded to the petitioner. There was no meeting held at any time nor any guideline was issued or provided to the petitioner either by Advisory Board or Advisory Committee and that the District Magistrate has no authority in the technical matters as under Section 17 of the Act Chairperson of the Advisory Committee is Joint Director of Health and Family Welfare. The order impugned has been passed by the District Magistrate without any authority. He has annexed the records maintained by him under Rule 9 (8) of which he has submitted monthly report of the clinical tests carried out by his Centre from 2.1.2012 to 28.2.2012 (25+18 entries); a copy of the register with 2 entries of November 2012; copy of the register with 8 entries for July, 2012; copy of the register with 16 entries for August, 2012; a copy of the register with 17+6 entries of September, 2012; a copy of the register with 4 entries of October, 2010; copy of the register with 2 entries of November, 2012; copy of the entries of the register with 10 entries of November, 2011; copy of the register with 4 entries of the month of December, 2011 and copy of the register with 17 entries of the month of October, 2011.
16. The details of the copies of the registers enclosed with the supplementary affidavit have been mentioned by us in seriatim, whereas these have been annexed by petitioner on random basis. There is no record or proof nor any defence was taken in reply to show cause notice or in this Court that all these tests were carried out as diagnosis of any ailments other than for sex-selection on pregnant women.
17. A perusal of the entries of the register annexed by the petitioner along with supplementary affidavit not only confirms the fears and the observance of the District Magistrate on the basis of which he has cancelled the license, they also disclose shocking facts to the Court and which virtually amount to admission made by the petitioner of sex determination tests carried out by him in his clinic. Almost all the entires in the register of the year 2011-12 except a few are of young females between the age group of 19 to 32 years and most of the reference has been made by Dr. M. Chaudhary. We have closely examined these entries to find out whether the petitioner is using ultrasound machine for diagnosis of any ailments other than sex determination. The copies of register annexed to supplementary affidavit confirm that all except a few tests have been carried out on young females of the reproductive age.
18. The records produced by the petitioner clearly demonstrates that the petitioner is using ultrasound as diagnostic machine for any ailments. He is only examining young females between age of 19 to 32 years of reproductive age. The copy of register annexed by the petitioner with his affidavit of February, July to December, 2012 confirms the findings of the District Magistrate that the petitioner is using ultrasound machines only for the purpose of sex determination of young married females, and that too on the references made to the petitioner only two doctors namely Dr. M. Chaudhary and Dr. Mahesh. No other doctor refers cases to the petitioner.
19. This Court has repeatedly issued directions in Contempt Application (C) No.820 of 2002 to the registration authorities to carry out the inspection of the ultrasound clinics run by both registered and qualified as well as the unqualified and unregistered doctors, in compliance with the provisions of the PC & PNDT Act. Those persons, who are running ultrasound machines and nursing homes for sex determination should be sternly dealt with under the provisions of the Act. In the order dated 11.5.2012 in Contempt Application No.820 of 2002, this Court has directed that if they are found indulged in sex determination, their clinics should be sealed and they should also be prosecuted.
20. In Voluntary health Association of Punjab v. Union of India & Ors., Writ Petition (Civil) No.349 of 2006 the Supreme Court has observed in its order dated 4.3.2013 as follows:-
"Indian society's discrimination towards female child still exists due to various reasons which has its roots in the social behaviour and prejudices against the female child and, due to the evils of the dowry system, still prevailing in the society, in spite of its prohibition under the Dowry Prohibition Act. The decline in the female child ratio all over the country leads to an irresistible conclusion that the practice of eliminating female foetus by the use of pre-natal diagnostic techniques is widely prevalent in this country. Complaints are many, where at least few of the medical professionals do perform Sex Selective Abortion having full knowledge that the sole reason for abortion is because it is a female foetus. The provisions of the Medical Termination of Pregnancy Act, 1971 are also being consciously violated and misused.
The Parliament wanted to prevent the same and enacted the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition on Sex-Selection) Act, 1994 (for short ''the Act') which has its roots in Article 15(2) of the Constitution of India. The Act is a welfare legislation. The Parliament was fully conscious of the fact that the increasing imbalance between men and women leads to increased crime against women, trafficking, sexual assault, polygamy etc. Unfortunately, facts reveal that perpetrators of the crime also belong to the educated middle class and often they do not perceive the gravity of the crime.
This Court, as early as, in 2001 in Centre for Enquiry into Health and Allied Themes v. Union of India (2001) 5 SCC 577 had noticed the misuse of the Act and gave various directions for its proper implementation. Non-compliance of various directions was noticed by this Court again in Centre for Enquiry into Health and Allied Themes v. Union of India (2003) 8 SCC 398 and this Court gave various other directions.
2011 Census of India, published by the Office of the Registrar General and Census Commissioner of India, would show a decline in female child sex ratio in many States of India from 2001-2011. The Annual Report on Registration of Births and Deaths - 2009, published by the Chief Registrar of NCT of Delhi would also indicate a sharp decline in the female sex ratio in almost all the Districts. Above statistics is an indication that the provisions of the Act are not properly and effectively being implemented. There has been no effective supervision or follow up action so as to achieve the object and purpose of the Act. Mushrooming of various Sonography Centres, Genetic Clinics, Genetic Counselling Centres, Genetic Laboratories, Ultrasonic Clinics, Imaging Centres in almost all parts of the country calls for more vigil and attention by the authorities under the Act. But, unfortunately, their functioning is not being properly monitored or supervised by the authorities under the Act or to find out whether they are misusing the pre-natal diagnostic techniques for determination of sex of foetus leading to foeticide.
The Union of India has filed an affidavit in September 2011 giving the details of the prosecutions launched under the Act and the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition on Sex-Selection) Rules, 1996 (for short ''the Rules'), up to June 2011. We have gone through the chart as well as the data made available by various States, which depicts a sorry and an alarming state of affairs. Lack of proper supervision and effective implementation of the Act by various States, are clearly demonstrated by the details made available to this Court. However, State of Maharashtra has comparatively a better track record. Seldom, the ultrasound machines used for such sex determination in violation of the provisions of the Act are seized and, even if seized, they are being released to the violators of the law only to repeat the crime. Hardly few cases end in conviction. Cases booked under the Act are pending disposal for several years in many Courts in the country and nobody takes any interest in their disposal and hence, seldom, those cases end in conviction and sentences, a fact well known to the violators of law. Many of the ultra-sonography clinics seldom maintain any record as per rules and, in respect of the pregnant women, no records are kept for their treatment and the provisions of the Act and the Rules are being violated with impunity.
The Central Government vide GSR 80(E) dated 7.2.2002 issued a notification amending the Act and regulating usage of mobile machines capable of detecting the sex of the foetus, including portable ultrasonic machines, except in cases to provide birth services to patients when used within its registered premises as part of the Mobile Medical Unit offering a bouquet or other medical and health services. The Central Government also vide GSR 418(E) dated 4.6.2012 has notified an amendment by inserting a new Rule 3.3(3) with an object to regulate illegal registrations of medical practitioners in genetic clinics, and also amended Rule 5(1) by increasing the application fee for registration of every genetic clinic, genetic counselling centre, genetic laboratory, ultrasound clinic or imaging centre and amended Rule 13 by providing that an advance notice by any centre for intimation of every change in place, intimation of employees and address. Many of the clinics are totally unaware of those amendments and are carrying on the same practises."
21. The Supreme Court has in the same order dated 4.3.2013 given directions to all the authorities as follows:-
"1. The Central Supervisory Board and the State and Union Territories Supervisory Boards, constituted under Sections 7 and 16A of PN&PNDT Act, would meet at least once in six months, so as to supervise and oversee how effective is the implementation of the PN&PNDT Act.
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.
3.The Committees mentioned above should report the details of the charges framed and the conviction of the persons who have committed the offence, to the State Medical Councils for proper action, including suspension of the registration of the unit and cancellation of licence to practice.
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 concerned District Authorities, in accordance with Rule 9(8) of the Rules.
5. States and District Advisory Boards should ensure that all manufacturers and sellers of ultra-sonography machines do not sell any machine to any unregistered centre, as provided under Rule 3-A and disclose, on a quarterly basis, to the concerned State/Union Territory and Central Government, a list of persons to whom the machines have been sold, in accordance with Rule 3-A(2) of the Act.
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.
7. Steps should also be taken by the State Government and the authorities under the Act for mapping of all registered and unregistered ultra-sonography clinics, in three months time.
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. 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.
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.
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 concerned Courts.
All the State Governments are directed to file a status report within a period of three months from today.
Ordered accordingly.
............................................J. (K. S. RADHAKRISHNAN)"
22. In a separate but concurring order Hon'ble Mr. Justice Dipak Misra, J. has given his opinion in the same case, an extract of which is quoted as below:-
"4. Be it noted, this is not for the first time that this Court is showing its concern. It has also been done before. In Centre for Enquiry into Health and Allied Themes (CEHAT) and others v. Union of India and others1, the two-Judge Bench commenced the judgment stating that the practice of female infanticide still prevails despite the fact that the gentle touch of a daughter and her voice has a soothing effect on the parents. The Court also commented on the immoral and unethical part of it as well as on the involvement of the qualified and unqualified doctors or compounders to abort the foetus of a girl child. It is apposite to state here that certain directions were given in the said decision.
5. Female foeticide has its roots in the social thinking which is fundamentally based on certain erroneous notions, ego-centric traditions, pervert perception of societal norms, and obsession with ideas which are totally individualistic sans the collective good. All involved in female foeticide deliberately forget to realize that when the foetus of a girl child is destroyed, a woman of future is crucified. To put it differently, the present generation invites the sufferings on its own and also sows the seeds of suffering for the future generation, as in the ultimate eventuate, the sex ratio gets affected and leads to manifold social problems. I may hasten to add that no awareness campaign can ever be complete unless there is real focus on the prowess of women and the need for women empowerment.
6. On many an occasion this Court has expressed its anguish over this problem in many a realm. Dealing with the unfortunate tradition of demand of dowry from the girl's parents at the time of marriage despite the same being a criminal offence, a two-Judge Bench in State of H.P. v. Nikku Ram and others has expressed its agony thus: -
"Dowry, dowry and dowry. This is the painful repetition which confronts, and at times haunts, many parents of a girl child in this holy land of ours where, in good old days the belief was : ["Yatra naryastu pujyante ramante tatra dewatah"] (where woman is worshipped, there is abode of God). We have mentioned about dowry thrice, because this demand is made on three occasions: (i) before marriage; (ii) at the time of marriage; and (iii) after the marriage. Greed being limitless, the demands become insatiable in many cases, followed by torture on the girl, leading to either suicide in some cases or murder in some."
The aforesaid passage clearly reflects the degree of anguish of this Court in regard to the treatment meted out to the women in this country.
7. It is not out of place to state here that the restricted and constricted thinking with regard to a girl child eventually leads to female foeticide. A foetus in the womb, because she is likely to be born as a girl child, is not allowed to see the mother earth. In M.C. Mehta v. State of Tamil Nadu and others, a three-Judge Bench, while dealing with the magnitude of the problem in engagement of the child labour in various hazardous factories or mines, etc., speaking through Hansaria, J., commenced the judgment thus:-
"I am the child.
All the word waits for my coming.
All the earth watches with interest to see what I shall become.
Civilization hangs in the balance.
For what I am, the world of tomorrow will be.
I am the child.
You hold in your hand my destiny.
You determine, largely, whether I shall succeed or fail, Give me, I pray you, these things that make for happiness.
Train me, I beg you, that I may be a blessing to the world."
8. The aforesaid lines from Mamie Gene Cole were treated as an appeal by this Court and the Bench reproduced the famous line from William Wordsworth "child is the father of the man". I have reproduced the same to highlight that this Court has laid special emphasis on the term "child" as a child feels that the entire world waits for his/her coming. A female child, as stated earlier, becomes a woman. Its life-spark cannot be extinguished in the womb, for such an act would certainly bring disaster to the society. On such an act the collective can neither laugh today nor tomorrow. There shall be tears and tears all the way because eventually the spirit of humanity is comatosed.
9. Vishwakavi Rabindranath Tagore, while speaking about a child, had said thus: -
"Every child comes with the message that God is not yet discouraged of man."
10. Long back, speaking about human baby, Charles Dickens had said thus : -
"Every baby born into the world is a finer one than the last."
11. A woman has to be regarded as an equal partner in the life of a man. It has to be borne in mind that she has also the equal role in the society, i.e., thinking, participating and leadership. The legislature has brought the present piece of legislation with an intention to provide for prohibition of sex selection before or after conception and for regulation of pre-natal diagnostic techniques for the purposes of detecting genetic abnormalities or metabolic disorders or chromosomal abnormalities or certain congenital malformations or sex-linked disorders and for the prevention of their misuse for sex determination leading to female foeticide. The purpose of the enactment can only be actualised and its object fruitfully realized when the authorities under the Act carry out their functions with devotion, dedication and commitment and further there is awakened awareness with regard to the role ofwomen in a society.
12. It would not be an exaggeration to say that a society that does not respect its women cannot be treated to be civilized. In the first part of the last century Swami Vivekanand had said: -
"Just as a bird could not fly with one wing only, a nation would not march forward if the women are left behind."
13. When a female foeticide takes place, every woman who mothers the child must remember that she is killing her own child despite being a mother. That is what abortion would mean in social terms. Abortion of a female child in its conceptual eventuality leads to killing of a woman. Law prohibits it; scriptures forbid it; philosophy condemns it; ethics deprecate it, morality decries it and social science abhors it. Henrik Ibsen emphasized on the individualism of woman. John Milton treated her to be the best of all God's work. In this context, it will be appropriate to quote a few lines from Democracy in America by Alexis De Tocqueville: -
"If I were asked ... to what the singular prosperity and growing strength of that people [Americans] ought mainly to be attributed, I should reply: to the superiority of their women."
23. It is unfortunate that in a civilized country like India some people for their petty gains are using modern technology for sex determination, which ultimately leads to abortion of female foetus. We are pained to observe that the qualified and registered doctors running ultrasound clinics are using the modern developments in technology to determine the sex of the child in womb, which leads to sex selection abortion of female foetus. In the last about 10 years with the availability of advanced ultrasonogrphy techniques, the doctors in our country have been responsible for abortions of about 10 million women, killing female children in womb. This mass carnage of female foetus in womb has made the Indian doctors responsible for the crimes, which has no parallel in the history of modern medical science. The number of deaths of female children in womb (female foeticide) in the last decade has exceeded the total deaths in the first and second world war. The Indian Legislature enacted DNDT Act in 1994 and then amended it in 1996 regulating pre-conception genetic clinics and counselling, and genetic laboratories. The executive has, however, failed to implement the Act in its true spirit. We may observe that as directed by the Supreme Court the sealing of the clinics and cancellation of the license by itself is not sufficient deterrent unless registration of such doctors with Medical Council of India or Indian Medicine Council of India as the case may be is cancelled and they are prosecuted, for carrying out sex determination. We are sad to observe that except for few cases in Maharashtra and Delhi the executive in the State of U.P. made responsible for enforcement of PC & PNDT Act has not taken effective steps to seal the clinics and to prosecute the doctors. Recently the Maharashtra Medical Council has suspended registration of 6 doctors for flouting guidelines of the PC & PNDT Act and 2 doctors have been sent notice for violating the Act in accordance with the report of Shri Anoop Satphale while charges have been framed against 69 doctors, 8 cases were sent to Ayurved Council and 7 have been directed to Homeopathic Council. The Maharashtra Medical Body has cancelled registration of about 66 doctors and cases were filed against 400 for violation of PC & PNDT Act.
24. In the circumstances, while upholding the order of the District Magistrate, who has made a commendable job in carrying out inspections, sealing clinics and cancelling registrations on finding gross violations of the provisions of PC & PNDT Act, 1994 and Rules of 1996, after giving notice to the ultrasound clinics, we direct him to refer the petitioner's case to the Medical Council of India, for suspension and for taking disciplinary action for misconduct for cancelling his registration and to initiating criminal action against him for carrying out sex determination tests; failing to maintain and furnish records and in submitting prescribed Form-F in accordance with the provisions of the Rules, and for carrying out ultrasonography tests, on young females of reproductive age conclusively indicating that there tests were carried out for sex determination, which is a punishable offence under PC & PNDT Act.
25. The writ petition is dismissed with the observations and directions as above, which will be carried out by the District Magistrate within a period of one month from the date the order is communicated to him.
26. A copy of the order shall be given to the Chief Standing Counsel, Government of U.P. for compliance.
Dt.17.05.2013 SP/