Federation of Obstetrics and Gynecological Societies of India (FOGSI) vs Union of India - Supreme Court Important Judgment 2019

Federation of Obstetrics and Gynecological Societies of India (FOGSI) v. Union of India - Supreme Court Important Judgment 2019 - 

On 3rd May, 2019, in the case of Federation of Obstetrics and Gynecological Societies of India (FOGSI) v. Union of India and others [Writ Petition (Civil) No.129 of 2017], the Supreme Court while examining issues allegedly affecting the practice of obstetricians and gynaecologists across the country under the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 held that the said Act “is a social welfare legislation, which was conceived in light of the skewed sex-ratio of India and to avoid the consequences of the same” and “rigorous implementation of the Act is an edifice on which rests the task of saving the girl child.”

With reference to the prayer made for direction in the nature of certiorari/ mandamus for decriminalising anomalies in paperwork/record keeping/clerical errors in regard of the provisions of the Act, the Supreme Court observed that “non maintenance of record is spring board for commission of offence of foeticide, not just a clerical error”; and “in order to effectively implement the various provisions of the Act, the detailed forms in which records have to be maintained have been provided for” by the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996.

Finding “no substance in the submission that provision of Section 4(3) be read down”, the Supreme Court observed that “by virtue of the proviso to Section 4(3), a person conducting ultrasonography on a pregnant woman, is required to keep complete record of the same in the prescribed manner and any deficiency or inaccuracy in the same amounts to contravention of Section 5 or Section 6 of the Act, unless the contrary is proved by the person conducting the said ultrasonography.” It observed that “the aforementioned proviso to Section 4(3) reflects the importance of records in such cases, as they are often the only source to ensure that an establishment is not engaged in sex-determination.”

It was held that “Section 23 of the Act, which provides for penalties of offences, acts in aid of the other Sections of the Act is quite reasonable.” The Supreme Court observed that dilution of the provisions of the Act or the Rules “would only defeat the purpose of the Act to prevent female foeticide, and relegate the right to life of the girl child under Article 21 of the Constitution, to a mere formality.” Dismissing the writ petition, the Supreme Court held that no case was “made out for striking down the proviso to Section 4(3), provisions of Sections 23(1), 23(2) or to read down Section 20 or 30 of the Act” and further held the “complete contents of Form ‘F’” (Form for maintenance of records in case of a pregnant woman by genetic clinic / ultrasound Clinic /Imaging Centre) “to be mandatory”.