Calcutta High Court (Appellete Side)
Bikram Srestha & Ors vs Union Of India & Ors on 23 April, 2019
Author: Protik Prakash Banerjee
Bench: Protik Prakash Banerjee
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23 23.04.2019
jb.
W.P. 13874(W) of 2018
Bikram Srestha & Ors.
vs.
Union of India & Ors.
Mr. Pramit Kr. Ray
Mr. Shaunak Ghosh
Mr. Basabraj Chakraborty
....For the Petitioners
Mr. Kaushik Chandra, Ld. A.S.G.
Mr. Kumar Jyoti Tewari
.... For the Union of India
A preliminary objection to the maintainability of the writ
petition which was taken by Mr. Tewari, learned advocate
appearing for the Union of India, is taken up today. The said
objection has been recorded by me in my order March 27, 2019. To
summarize this objection, Mr. Tewari has taken this Court
through (2016) 10 SCC 265 (Voluntary Health Association of
Punjab vs. Union of India & Ors.) to show that the provisions of
the Act of 1994 as amended have been considered by the Supreme
Court and, therefore, no writ petition ought to be entertained by
the High Court to vary the same in any way whatsoever. Mr.
Tewari has also relied upon a judgment in the case of Union of
India vs. Indian Radiological and Imaging Association and
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Others reported in (2018) 5 Supreme Court Cases 773 to say
that the Hon'ble High Court of Delhi in passing a judgment
contrary to the judgment of the Hon'ble High Court in (2016) 10
SCC 265 (supra) appeared to encroach on the field of legislative
policy and on that basis the judgment of the Hon'ble Delhi High
Court was stayed.
Mr. Ray, learned counsel appearing for the petitioners seeking
to rebut such submission has pointed out paragraph 47 of the first
judgment. He submits that in the present case there is a
categorical challenge to the vires of the provisions and, therefore,
the fact of the case is not the same as that was considered by the
Hon'ble Supreme Court in the case reported in (2016) 10 SCC
265. He submits that a little difference of fact creates a lot of
difference in the value of a judgment as precedent and relies upon
the judgment in the case of Quinn--v--Leathem reported in
(1901) AC 495 which has been followed in India inter alia, in the
case of Bhavnagar University--v--Palitana Sugar Mills (P) Ltd.
reported in (2003) 2 SCC 111.
There is some substance in Mr. Ray's submission. So far as
the judgment reported in (2018) 5 SCC 773 is concerned from
paragraph 14 onwards, it is very clear that Their Lordships were
pleased to consider the effect of the Delhi High Court judgment
which was contrary to the case of Voluntary Health Association
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of Punjab vs. Union of India & Ors. This pre-supposes that the
facts of the case in Delhi High Court judgment were similar to
those in the case of Voluntary Health Association of Punjab,
neither of which is applicable to the fact of this case, because here
the vires of the statute has been challenged on the ground that the
exceptions created to the prohibition of the tests, seem defeat the
legislative intention of preventing the disclosure of the gender of
the foetus, to prevent female foeticide and the facts of the case are
not the same.
Furthermore, I am not impressed by the submissions of Mr.
Tiwari that the stay of operation of a final judgment, passed as an
interim measure by the Hon'ble Supreme Court prevents me from
hearing this petition under Article 226 of the Constitution of India.
I am of the opinion that such interim stay of a judgment, even
though by a reasoned order, operates as a declaration of law under
Article 14 of the Constitution except of course it binds the parties
to the proceeding where it was passed. So, unless the judgment
under appeal, whose operation has been stayed, is set aside, it is
difficult for a High Court to consider that the stay of operation of a
judgment amounts to declaration of any law. The effect of this
order is to ensure that directions given in the case reported in
(2016) 10 SCC 265 are followed by every Court and other civil
authority provided of course that the constitutionality of the Act or
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some of its provisions are not struck down. If course the vires of
the statute is upheld in this petition, then the petition would be
dismissed on merits. Therefore, I see no difficulty in harmonizing
the directions given as referred to above, with the maintainability
of the present writ petition.
The preliminary objection is accordingly overruled and the writ
petition will be heard. Naturally unless this writ petition is
allowed, direction in the case of Voluntary Health Association of
Punjab shall be complied with in every respect within this
jurisdiction till the disposal of the writ petition.
So far as the submission of the petitioners that no coercive
action should be taken against them if there is any alleged
violation of the Act by them, is concerned, from paragraph 3 of the
writ petition I find that the petitioners have not yet opened any
clinic which would allow them to carry on any test. In fact the
petitioners have alleged as follows:-
"At present, your Petitioners are interested in
doing social services by opening up a Genetic
clinic with a view of curbing female foeticide
and intend to undertake Genetic tests, inter
alia, by testing of Chorionic Villi Sampling
and Amniotic Fluid subject to approval by the
Appropriate Authorities."
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Since the petitioners are naturally interested to open the clinic
but have not been running the same, the question of taking any
coercive action cannot arise. In the event that the clinic is opened
that would be subject to the statutory rules and regulations as
they now stand which includes the law declared in respect thereof.
I am confident that the Union of India and the State Machinery
will act in accordance with law.
At this stage, the Learned Additional Solicitor General submits
that the Union of India should be allowed to file an affidavit-in-
opposition and the matter be heard on affidavits. Granting him
leave would mean undoing the effect of the order dated March 12,
2019 by which because of the respondents not having filed
affidavits, I had set them ex parte but directed that the respondents would be entitled to challenge the maintainability of the writ petition on the basis of the allegations contained in the writ petition and also to raise any question of law which would not require the denial of the said allegations. In fact, today's hearing was held pursuant to the said directions and by arguing the point of maintainability the respondents have acted in terms of the said earlier order and cannot now, on oral submission, be allowed to resile. The respondents are however, granted liberty to take appropriate steps, in accordance with law, if they are so advised, 6 to seek liberty to file affidavits after modification of the order dated March 12, 2019.
The matter shall appear after two weeks and shall be treated as heard in part.
(Protik Prakash Banerjee, J.)