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IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 349 OF 2006
Voluntary Health Association ... Petitioner(s)
JUDGMENT
The two writ petitions being inter-connected in certain aspects were heard together and are disposed of by the singular order. We shall first deal with the grievance agitated in Writ Petition (Civil) No. 349 of 2006 and thereafter advert to what has been asserted in the other writ petition. Be it stated immediately that the issues raised in
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Writ Petition (Civil) No. 349 of 2006 are not agitated for the first time, for they had been raised on earlier occasions and dealt with serious concern and solemn sincerity. It is because they relate to the very core of existence of a civilized society, pertain to the progress of the human race, and expose the maladroit efforts to throttle the right of a life to feel the mother earth and smell its fragrance. And, if we allow ourselves to say, the issues have been highlighted with sincere rhetorics and balanced hyperboles and ring the alarm of destruction of humanity in the long run. It is not a group prophecy, but a significant collective predication. The involvement of all is obvious, and it has to be. The heart of the issue that is zealously projected by the petitioner is the increase of female foeticide, resultant imbalance of sex ratio and the indifference in the implementation of the stringent law that is in force. In essence, the fulcrum of the anguished grievance lays stress on the non-implementation of the provisions of The Pre-conception and Pre-natal
Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (for brevity “the Act”) and The Pre-conception and
Pre-natal Diagnostic Techniques (Prohibition of Sex
Selection) Rules, 1996 (for short “the Rules”) framed under the Act by the competent authorities who are obliged to do so.
2. The grievance has a narrative, and it needs to be stated.
3. Realising the rise of pre-natal diagnostic centres in urban areas of the country using pre-natal diagnostic techniques for determination of sex of the foetus and that the said centres had become very popular and had tremendous growth, as the female child is not welcomed with open arms in many Indian families and the consequence that such centres became centres for female foeticide which affected the dignity and status of women, the Parliament brought in the legislation to regulate the use of such techniques and to provide punishment for such inhuman act. The objects and reasons of the Act stated unequivocally that it was meant to prohibit the misuse of pre-natal diagnostic techniques for determination of sex of the foetus, leading to female foeticide; to prohibit advertisement of pre-natal diagnostic techniques for detection or determination of sex; to permit and regulate the Page 4 use of pre-natal diagnostic techniques for the purpose of detection of specific genetic abnormalities or disorders; to permit the use of such techniques only under certain conditions by the registered institutions; and to punish for violation of the provisions of the proposed legislation. The Preamble of the Act provides for the 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 and for matters connected therewith or incidental thereto. Be it noted when the Act came into force, it was named as the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 and after the amendments in 2001 and 2003, in the present incarnation, it is called The Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994. Page 5
4. As the violence and cruelty meted out to women gradually got revealed due to rights and protections prescribed under various legislations, the Court perceived the magnitude of the crime. Such a situation compelled this Court, in Ajit Savant Majagvai v. State of Karnataka[1], while dealing with the physical violence, torture, mental cruelty and murder of the female particularly the wife, to comment on the degeneration of relationship and the prevalent atmosphere by observing that:-
5. We may repeat, the aforestated observation though made totally in a different context but nonetheless, it seemly stated the marrow of the problem. Needless to emphasise, the predicament with regard to female foeticide by misuse of modern science and technology has aggravated and enormously affected the sex ratio. To eradicate the malady, the Parliament, as stated earlier, had enacted the Act. In the first year of this century, a petition under Article 32 was moved for issuing directions to implement the provisions of the said Act by (a) appointing appropriate authorities at State and district levels and the Advisory Committees; (b) issuing direction to the Central Government to ensure that Page 7 the Central Supervisory Board meets every 6 months as provided under the PNDT Act; and for banning of all advertisements of prenatal sex selection including all other sex-determination techniques which can be abused to selectively produce only boys either before or during pregnancy. A two-Judge bench in Center for Enquiry into Health & Allied Themes (CEHAT) and others v. Union of India and others[2] and Center for Enquiry into Health & Allied Themes (CEHAT) and others v. Union of India and others[3] on 04.05.2001 issued certain directions. Apart from the directions contained in the said orders, the Court, while finally disposing of the writ petition, issued the following directions:- “(a) For effective implementation of the Act, information should be published by way of advertisements as well as on electronic media. This process should be continued till there is awareness in the public that there should not be any discrimination between male and female child. (b) Quarterly reports by the appropriate authority, which are submitted to the Supervisory Board should be consolidated and published annually for information of the public at large.
(c) Appropriate authorities shall maintain the records of all the meetings of the Advisory Committees.
(d) The National Inspection and Monitoring
Committee constituted by the Central Government for conducting periodic inspection shall continue to function till the Act is effectively implemented. The reports of this Committee be placed before the Central Supervisory Board and State Supervisory Boards for any further action. (e) As provided under Rule 17(3), the public would have access to the records maintained by different bodies constituted under the Act. (f) The Central Supervisory Board would ensure that the following States appoint the State Supervisory Boards as per the requirement of Section 16-A: 1. Delhi, 2. Himachal Pradesh, 3. Tamil Nadu, 4. Tripura, and 5. Uttar Pradesh. (g) As per the requirement of Section 17(3)(a), the Central Supervisory Board would ensure that the following States appoint the multi-member appropriate authorities: 1. Jharkhand, 2. Maharashtra, 3. Tripura, 4. Tamil Nadu, and 5. Uttar Pradesh. It will be open to the parties to approach this Court in case of any difficulty in implementing the aforesaid directions”.
6. Despite the directions issued by the Court, there had not been proper implementation and that compelled the present petitioner, namely, Voluntary Health Association of Punjab to file the present Writ Petition seeking various directions. The Court on 08.01.2013 took note of the fact that the provisions had not been adequately implemented Page 9 by the various States and Union Territories and accordingly directed for personal appearance of the Health Secretaries of the States of Punjab, Haryana, NCT of Delhi, Rajasthan, Uttar Pradesh, Bihar and Maharashtra, to examine what steps they had taken for the proper and effective implementation of the provisions of the Act as well as the various directions issued by this Court.
7. At a later stage, a reference was made to 2011 Census of India to highlight there had been a sharp decline in the female sex ratio in many States. It was also observed that there had been no effective supervision or follow-up action so as to achieve the object and purpose of the Act. It was observed that mushrooming of various sonography centres, genetic clinics, genetic counselling centres, genetic laboratories, ultrasonic clinics, imaging centres in almost all parts of the country called for more vigil and attention by the authorities under the Act. The Court also found that their functioning was not being properly monitored or supervised by the authorities under the Act or to find out whether they are misusing the pre-natal diagnostic Page 10 techniques for determination of sex of foetus leading to foeticide.
8. A reference was made to various facets of the Act and the Rules and ultimately the Court in Voluntary Health Association of Punjab v. Union of India and others[4] issued 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 implementation of the PN & PNDT Act.
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.
9.3. 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.
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
9.5. States and District Advisory Boards should ensure that all manufacturers 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 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 Page 12 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 further direction was given to file the Status Report within a period of three months. It is apt to note here that in the concurring opinion Dipak Misra, J. only highlighted certain aspects that pertained to direction contained in paragraph 9.8.
9. We may profitably reproduce certain passages from the concurring opinion:- “14. Female foeticide has its roots in the social thinking which is fundamentally based on certain erroneous notions, egocentric traditions, perverted perception of societal norms and obsession with ideas which are totally individualistic sans the collective good. All involved in female foeticide deliberately forget to realise that when the foetus of a girl child is destroyed, a woman of the 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. x x x x x Page 13
19. 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. x x x x x
21. 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 emphasised 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.” x x x x x
32. A cosmetic awareness campaign would never subserve the purpose. The authorities of the Government, the non-governmental organisations and other volunteers are required to remember that there has to be awareness camps which are really effective. The people involved with the same must take it up as a service, a crusade. They must understand and accept that it is an art as well as a science and not simple arithmetic. It cannot take the colour of a routine speech. The awareness camps should not be founded on the theory of Euclidian geometry. It must engulf the Page 14 concept of social vigilance with an analytical mind and radiate into the marrows of the society. If awareness campaigns are not appositely conducted, the needed guidance for the people would be without meaning and things shall fall apart and everyone would try to take shelter in cynical escapism.
33. It is difficult to precisely state how an awareness camp is to be conducted. It will depend upon what kind and strata of people are being addressed to. The persons involved in such awareness campaign are required to equip themselves with constitutional concepts, culture, philosophy, religion, scriptural commands and injunctions, the mandate of the law as engrafted under the Act and above all the development of modern science. It needs no special emphasis to state that in awareness camps while the deterrent facets of law are required to be accentuated upon, simultaneously the desirability of law to be followed with spiritual obeisance, regard being had to the purpose of the Act, has to be stressed upon. The seemly synchronisation shall bring the required effect. That apart, documentary films can be shown to highlight the need; and instil the idea in the mind of the public at large, for when the mind becomes strong, mountains do melt.
34. The people involved in the awareness campaigns should have boldness and courage. There should not be any iota of confusion or perplexity in their thought or action. They should treat it as a problem and think that a problem has to be understood in a proper manner to afford a solution. They should bear in mind that they are required to change the mindset of the people, the grammar of the society and unacceptable beliefs inherent in the populace.” Page 15
10. As directed in the judgment, the matter was listed and certain clarifications were sought for by the Union of India with regard to the directions vide direction Nos. 2, 3, 4 and 6 pointing out that the authorities mentioned in direction No. 2 should also include appropriate authority under Section 17 and Section 17A of the Act. With regard to direction No. 6, it was submitted that instead of Forms A, E and H, Forms A, D, F, G & H be substituted. The said prayers were allowed and the States were directed to file their respective status report.
11. On 16.9.2014 the Court took note of the directions already issued and proceeded to deal with I.A. No. 11 of 2013 and recorded the submission of Mr. Sanjay Parikh, learned counsel that the Union of India has to animate itself in an appropriate manner to see that the sex ratio is maintained and does not reduce further. It was also urged by him that the Central Supervision Committee which is required to meet to take stock of the situation and the National Monitoring Committee who is required to monitor the activities, had failed in their duties. Page 16
12. Mr. Parikh had also drawn the attention of the Court to the proviso to Section 4(3) of the Act which reads as follows:- “4. Regulation of pre-natal diagnostic techniques.-- On and from the commencement of this Act,-- (1) … (2) … (3) … 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 the provisions of section 5 and section 6 unless contrary is proved by the person conducting such ultrasonography.”
13. It was propounded by him that the concerned authorities have not acted in accordance with the aforesaid provision in all seriousness as a result of which the nation has faced the disaster of female foeticide. On that day, Mr. Colin Gonsalves, learned senior counsel appearing for the writ petitioner had drawn our attention to the affidavit filed by the petitioner contending, inter alia, that the sex ratio in most of the States had decreased and in certain States, there had been a minor increase, but the same is not likely to subserve the aims and objects of the Act. After referring to the history of this litigation which has been Page 17 continuing in this Court since long, he had submitted that certain directions are required to be issued.
14. The Union of India was directed to file an affidavit of the Additional Secretary of Health and/or any other concerned Additional Secretary clearly stating what steps had been taken and on the basis of the steps taken, what results have been achieved. It was also directed that all the States shall file their responses through the concerned Health Secretaries. The direction further contained that the affidavits shall be comprehensive and must reflect sincerity and responsibility.
15. On 25.11.2014 the Court noted that affidavits by certain States had been filed and certain States, namely, Assam, Arunachal Pradesh, Bihar, Goa, Gujarat, Kerala, Madhya Pradesh, Meghalaya, Mizoram, Odisha, Tripura, and UT of Daman and Nagar Haveli and Puducherry had not filed the affidavits. Two weeks time was granted to file the necessary affidavits. At that juncture, it was thought appropriate to advert to the States by dividing them into certain clusters. It was decided to deal with the situation pertaining to the States of Uttar Pradesh, Haryana and NCT Page 18 of Delhi first. The affidavit filed by the State of Uttar Pradesh was considered and in that context it was observed that the census conducted in 2011 cannot be the guideline for the purposes of PC-PNDT Act. It was felt that a different methodology was required to be adopted by the State. Paragraph 28 of the affidavit, which is of significance, is extracted below:- “28. That it is pertinent to mention herein that according to “ANNUAL HEALTH SURVEY (AHS)” for the year 2010-11, 2011-12 and 2012-13, improvement has been revealed in the State in respect of Sex Ratio At Birth, Sex Ratio of Child (0 to 04 years age) and Sex Ratio in all age group, which is clear with the table given below: Year of Annual Health Survey Sex Ratio (at birth) Sex Ratio (0 to 4 years of Sex Ratio (In all ages) 2010-11 904 913 943 2011-12 908 914 944 2012-13 921 919 946 It is necessary to mention here that on a query being made by the Court, learned counsel for the State was not in a position to explain on what basis the said figures had been arrived at, for the same was not reflectible from the assertions made in the affidavit. Page 19
16. As far as the State of Haryana is concerned, the chart given in paragraph 15 of the affidavit indicated district-wise and month-wise sex ratio of births during the year 2014. It is as follows:- “District wise and month wise Sex Ratio at Birth during year 2014 in Haryana State as per CRS (Prov) Sr. No District Up to Jan.14 Up to Feb.14 Up to Mar Up to April Up to May Up to June
21 Yamuna naga 903 940 916 897 894 869 Haryana State 889 884 881 878 878 874” Page 20 Nothing had been filed stating as to how the aforesaid figures had been reached except making a statement that the figures were arrived at on the basis of entry in certain registers.
17. On a perusal of the affidavit by the NCT of Delhi, it was noted that in paragraph 5, it had been stated, thus:- “5. It is submitted that Sex Ratio at Birth in Delhi, which is a reliable indicator of violations under the PC & PNDT Act, has improved by 9 points in 2013 over the previous year. The data available from Civil Registration System indicates that Sex Ratio at Birth was 809 females per 1000 males in the year 2001 and it is currently at 895 in 2013 Annexure R-I.”
18. At that stage, the Court felt the need for verification of the documents that formed the basis on which these figures had been reached. It was also clarified that the figures that had been put forth did not show much indication of improvement but it was necessary to verify whether the figures that had been set forth was correct or not. The purpose was to find out whether there was degradation of sex ratio or stagnation or any steps had really been taken by the concerned States to improve/enhance the sex ratio or not; and accordingly it was directed that a meeting be held Page 21 under the auspices of National Inspection and Monitoring Committee wherein the Additional Secretary who had filed the affidavit for the Union of India and two other Joint Secretaries of the Ministry of Health and Family Welfare shall remain present. The deponents who had filed the affidavits before this Court on behalf of the State of Uttar Pradesh and NCT of Delhi were directed to remain present. The Director General, Health Services, State of Haryana and the Principal Secretary along with the Special Secretary, State of Uttar Pradesh were also directed to remain present in the meeting and to produce the relevant registers/records before the said Committee on the date fixed. Mr. Gonsalves, learned senior counsel for the petitioner and Mr. Parikh, learned counsel for the impleaded respondent(s) were allowed to be present. The report was required to be filed before this Court by 10.12.2014. It was further directed that apart from the sex-ratio, the aforesaid three States shall also bring records with regard to the prosecutions levied by the State yearwise and the stage of the prosecution.
19. Pursuant to order dated 25.11.2014, the Committee verified the data submitted by three States, namely, Uttar Page 22 Pradesh, Haryana and Delhi. As far as the State of Uttar Pradesh was concerned, on a perusal of the report, it transpired that the figures that were submitted by the State of Uttar Pradesh had been verified by the Committee and found to be correct. On a perusal of the report along with the documents that had been annexed to, it was noticed that certain cases were pending for trial before the trial Court. Regard being had to the fact that they had been instituted long back, a direction was issued to the effect that the proceedings that were pending before for trial and where there was no stay order of the High Court or this Court, the same shall be taken up in quite promptitude and be disposed of within a period of three months commencing 20th January, 2015. Be it stated certain other directions were issued to be complied with by the State of Uttar Pradesh.
20. At a subsequent stage, the data furnished by the States, i.e., Bihar, Himachal Pradesh, Rajasthan and Tamil Nadu were verified. On 15.4.2015 this Court’s attention was drawn to the sex ratio in Delhi which had been verified Page 23 by the Monitoring Committee as per the population census. The said sex ratio relates to 2011 which reads as follows:- “Sex Ratio as per Population Census The universal sex ratio of Delhi as per population census for all age groups taken together was 821 females per 1000 males in 2001 and it has become 866 females per 1000 males as per provisional data of census – 2011. Children sex ratio (0-6) of Delhi went down marginally from 868 (as per census 2001) to 866 (as per census 2011). As can be seen from statement 1.3, at both points of the figures of Delhi were below than All India level. The district-wise scenario for the children of 0-6 years varies in different districts. Statement 1.3: Sex ratio of Delhi/All India as per population Census Data
┌─────────────────────────────────────────────────────────────────────────┐ │ population Census Data │ │
┌─────────────────────────────────────────────────────────────────────┐ │ Sl.No Name of the 2010 2011 2012 2013 2014 │ │ District │ ├─────────────────────────────────────────────────────────────────────┤ │ 1 2 3 4 5 6 7 │ │ 1 Angul 894 900 879 890 904 │ │ 2 Balasore 923 891 912 870 870 │ │ 3 Argarh 923 889 913 891 913 │ │ 4 Bhadrak 923 891 876 883 875 │ │ 5 Bolangir 945 930 933 950 939 │ │ 6 Boudh 983 957 936 934 918 │ │ 7 Cuttack 860 874 860 854 843 │ │ 8 Deogarh 896 954 958 954 938 │ │ 9 Dhenkanal 856 833 850 845 849 │ │ 10 Gajapati 875 930 927 890 892 │ │ 11 Ganjam 902 880 867 813 794 │ │ 12 Jagatsinghpur 912 905 842 777 852 │ │ 13 Jajpur 863 876 828 824 823 │ │ 14 Jharsuguda 859 902 882 908 878 │ │ 15 Kalahandi 888 935 968 989 942 │ │ 16 Kandhamal 912 943 950 962 940 │ │ 17 Kendrapara 881 836 828 734 705 │ │ 18 Keonjhar 934 923 950 965 930 │ │ 19 Khurda 892 876 884 885 842 │ │ 20 Koraput 935 943 960 945 942 │ │ 21 Malkangiri 948 947 993 942 935 │ │ 22 Mayurbhanj 955 934 936 931 933 │ │ 23 Nawarangpur 962 932 936 979 965 │ │ 24 Nayagarh 874 859 774 844 811 │ │ 25 Nuapada 945 956 955 909 1055 │ │ 26 Puri 933 888 874 873 854 │ │ 27 Rayagada 955 954 939 931 945 │ │ 28 Sambalpur 906 918 908 891 903 │ │ 29 Subarnapur 940 934 946 939 965 │ │ 30 Sundargarh 911 892 865 897 906 │ │ Odisha 911 902 896 886 889” │ │ Page 28 │ │ Learned counsel submitted that when the sex ratio │ └─────────────────────────────────────────────────────────────────────┘
A District wise sex ratio 2001 2011
│ │ (Children of 0-6 years) │ │ South 888 878 │ │ South West 846 836 │ │ North West 857 863 │ │ North 886 872 │ │ Central 903 902 │ │ New Delhi 898 884 │ │ East 865 870 │ │ North East 875 875 │ │ West 859 867 │ │ Delhi │ │ Children of 0-6 years 868 866 │ │ All ages 821 866 │ │ All India │ │ Children of 0 -6 years 927 914 │ │ All ages 933 940 │ │ Source: Population census – 2011” │ │ Page 23 │ ├─────────────────────────────────────────────────────────────────────────┤ │ 21. Our attention was also drawn to the document which │ └─────────────────────────────────────────────────────────────────────────�
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34. Before parting with the case, let it be stated with certitude and without allowing any room for any kind of equivocation or ambiguity, the perception of any individual or group or organization or system treating a woman with inequity, indignity, inequality or any kind of discrimination is constitutionally impermissible. The historical perception has to be given a prompt burial. Female foeticide is conceived by the society that definitely includes the parents because of unethical perception of life and nonchalant attitude towards law. The society that treats man and woman with equal dignity shows the reflections of a progressive and civilized society. To think that a woman should think what a man or a society wants her to think is tantamounts to slaughtering her choice, and definitely a humiliating act. When freedom of free choice is allowed within constitutional and statutory parameters, others cannot determine the norms as that would amount to acting in derogation of law. Decrease in the sex ratio is a sign of Page 40 colossal calamity and it cannot be allowed to happen. Concrete steps have to be taken to increase the same so that invited social disasters do not befall on the society. The present generation is expected to be responsible to the posterity and not to take such steps to sterilize the birth rate in violation of law. The societal perception has to be metamorphosed having respect to legal postulates.
35. Now, we shall advert to the prayers in Writ Petition
(Civil) No. 575 of 2014. The writ petition has been filed by
Indian Medical Association (IMA). It is contended that Sections 3-A, 4, 5, 6, 7, 16, 17, 20, 23, 25, 27 and 30 of the Act and Rules 9(4), 10 & Form “F” (including foot-note), which being the subject matter of concern in the instant writ petition, are being misused and wrongly interpreted by the concerned authorities thereby causing undue harassment to the medical professionals all over the country under the guise of the ‘so-called implementation’. It is also urged that, implementation of steps and scrutiny of records was started at large scale all over the country and lot of anomalies were found in records maintained by doctors throughout the country. It is however pertinent to mention Page 41 here that the majority of the defaults were of technical nature as they were merely minor and clerical errors committed occasionally and inadvertently in the filing of Form “F”. It is also put forth that the Act does not classify the offences and owing to the liberal and vague terminology used in the Act, it is thrown open for misuse by the concerned implementing authorities and has resulted into taking of cognizance of non-bailable (punishable by three years) offences against doctors even in the cases of clerical errors, for instance non-mentioning of N.A. (Not Applicable) or leaving of any column in the concerned Form “F” as blank. It is further submitted that the said unfettered powers in the hands of implementing authority have resulted into turning of this welfare legislation into a draconian novel way of encouraging demands for bribery as well as there is no prior independent investigation as mandated under Section 17 of the Act by these Authorities. It is also set forth that the Act states merely that any contravention with any of the provisions of the Act would be an offence punishable under Section 23(1) of the said Act and further all offences under the Act have been made Page 42 non-bailable and non-compoundable and the misuse of the same can only be taken care of by ensuring that the Appropriate Authority applies its mind to the fact of each case/complaint and only on satisfaction of a prima facie case, a complaint be filed rather than launching prosecution mechanically in each case. With these averments, it has been prayed for framing appropriate guidelines and safeguard parameters, providing for classification of offences as well, so as to prohibit the misuse of the PCPNDT Act during implementation and to read down this Sections 6, 23, 27 of PCPNDT Act. That apart, it has been prayed to add certain provisos/exceptions to Sections 7, 17, 23 and Rule 9 of the Rules.
36. In our considered opinion, whenever there is an abuse of the process of the law, the individual can always avail the legal remedy. As we find, neither the validity of the Act nor the Rules has been specifically assailed in the writ petition. What has been prayed is to read out certain provisions and to add certain exceptions. We are of the convinced view that the averments of the present nature with such prayers Page 43 cannot be entertained and, accordingly, we decline to interfere.
37. In the result, Writ Petition (Civil) No. 349 of 2006 stands disposed of in terms of the directions issued by us and Writ Petition (Civil) No. 575 of 2014 stands dismissed. In the facts and circumstances of the case, there shall be no order as to costs .............................. J. [Dipak Misra] ............................ J. [Shiva Kirti Singh] New Delhi; November 8, 2016