Gynaecologists and obstetricians in India lost a major battle in the Supreme Court on Friday after the bench upheld provisions of part of the Prohibition of Sex Selection Act, 1994, which punishes registered medical practitioners for anomalies in paperwork or clerical errors. The Federation of Obstetrics and Gynecological Societies of India (FOGSI) had sought to decriminalise "unintentional and inadvertent" errors that has made them vulnerable to prosecution by challenging Sections 23 (1) and 23 (2) of the Pre-conception and Pre-natal Diagnostic Techniques under the Act.

However, the Supreme Court bench comprising Justice Arun Mishra and Justice Vineet Saran dismissed the petition, stating that changes or watering down of the Act will defeat the purpose of the Act itself – which is to prevent female foeticide.

The judgement largely referred to 'Form F,' a mandatory form that must be filled out for all pregnant women who undergo prenatal scans.

What the contested Sections of the Act state

Sections 23 (1) of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 states that if any medical geneticist, gynaecologist, or registered medical practitioner or any person who owns or is employed at a genetic counselling centre, a genetic laboratory or a genetic clinic is found to have violated any of the provisions of this Act or rules made thereunder, they shall be punishable with imprisonment up to three years and ordered to pay a fine which may extend to Rs 10,000. Any subsequent conviction may lead to imprisonment which may extend to five years and with a fine which may extend to Rs 50,000.

Section 23 (2) states that the name of the registered medical practitioner who is found to violate the Act shall be reported to the State Medical Council and appropriate action, which could include suspension of the registration, may be taken. If convicted, the concerned practitioner’s name may also be removed from the register for a period of five years and even permanently in the case of a subsequent offence.

What the petition sought

FOGSI, the apex body of obstetricians and gynaecologists of the country, had filed a writ petition in the Supreme Court stating that even clerical mistakes committed by medical practitioners can be termed as a violation of the Act.

“...even the smallest anomaly in paperwork which is, in fact, an inadvertent and unintentional error has made the obstetricians and gynaecologists vulnerable to the prosecution by the Authorities all over the country,” the petition stated.

The Act, the petition stated, equated such anomalies with “acts of sex determination” and thus was violative of Articles 14 (Equality before law), 19(1)(g) (the right to practise any profession or to carry on any occupation, trade or business) and 21 (Protection of life and personal liberty of the Constitution of India.

"At present, the punishment for any clerical error in Form F is the same as if someone were to perform illegal sex determination. This is what the petition filed by FOGSI sought to change," stated an official from FOGSI to TNM.

‘Form F,’ the form that is mandatory for all pregnant women who undergo any prenatal scans, includes the basic details of the patient including name, age, address, as well as her previous obstetric history including the number of children she has and their sex.

"The form is complex and requires a lot of extensive details. Clerical errors do happen and that alone cannot be used to sentence someone to such a harsh punishment. It needs to be more flexible," the source added.

What the Supreme Court said

The Supreme Court, however, stated that these anomalies cannot be considered simple mistakes – especially in the case of a ‘Form F’.

Holding that Form F is mandatory, the Supreme Court bench stated that filling out Form F is the responsibility of the person who has undertaken such a test and that if the information and details in the form are missing or not mentioned, the violation of the Act would be blatant and unchecked and the offence can never be detected.

“Non-maintenance of record is the spring board for commission of offence of foeticide, not just a clerical error (sic),” the Supreme Court said. The bench added that in the absence of Form ‘F’, authorities will have no tool to supervise the usage of the ultrasound machine and shall not be able to regulate the use of the technique, which is the objective of the Act.

“...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,” the Supreme Court said, dismissing the petition.