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In a very progressive judgement by the Hon’ble Supreme of a bench comprising, Justice Arun Mishra and Vineet Saran, the Court held the constitutional validity of Sections 23(1) and 23(2) of Preconception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (Act). This judgment was in response to the petition filed by the Federation of Obstetrics and Gynecological Societies of India (FOGSI) who highlighted the numerous problems which the gynecologists and obstetricians around the country faced. The Petition in the present petition had questioned the constitutional validity of 23(1) and 23(2) of the Act and also asked for the decriminalizing the anomalies in paper work and records in regard to the provisions of the Act. The Petitioner also called it as being violative of Article 14, 19(1) (g) and 21 of the Constitution.
The said act in question was implemented to prevent the prenatal determination of the sex of the child, however the true implementation of it is far from what it should be. The Petitioners contend that the Act fails to distinguish clearly, the difference between criminal offences and regular errors or anomalies in paperwork. Secondly, the F form does not serve the purpose for which is was made and there lies no evidence that there was any direct connection between the offence of sex selection and determination. Thirdly, many members of the medical community were being arrested and punished for offences of female foeticide and sex determination, for no other reason, but for errors in the paperwork. Section 23(1) of the Act was resulting in the miscarriage of justice and detrimental to the entire community.The Act also gives the State Medical Council the power to suspend the registration of the any doctor indefinitely, during the pendency of the trial. Section 23 (2) is ultra vires the Constitution as it assumes a person to be guilty before the trial, thus violating Article 21 and the principles of a fair trial.
However, there arose certain responses to the contentions made by the Petitioners. Firstly, the non-maintenance of records is not a clerical or technical lapse, but instead it is the omission of a critical piece of evidence which is instrumental in nabbing the accused. Secondly, Section 23 and Form F are inter connected and hence the provisions related to them cannot be altered. The Act prevents the detection of the female foetus, which many a times takes the form of female foeticide. This is done in the greater public interest.
The Supreme Court in its judgment upheld the constitutionality of the Act and stated that although Form F has a clerical nature, however, omission in the form will lead to the violation of Section 4 of the Act. And, that the filling up of the form is not a clerical job, but a condition precedent for undergoing the procedure. Also the provisions of 5, 6 and the proviso to Section 4(3) cannot be diluted or altered because they have been incorporated in Form F. This judgment helps in protecting the lives of many women in India along with the lives of those unborn children who are subjected to foeticide.
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