Nothing can be more sinister than female foeticide: SC

"Nothing can be more sinister, immoral and anti­-social act than allowing female foeticide," a bench of Justices Arun Mishra and Vineet Saran said, adding the non-maintenance of the record is the very foundation of offence. File photo

The Supreme Court has said non-maintenance of record by sonography and diagnostic centre is a springboard for the commission of the offence of female foeticide, and it cannot be termed as a clerical error.

"A skewed sex­ ratio is likely to lead to greater incidences of violence against women and increase in practices of trafficking, ‘bride­ buying’ etc. The rigorous implementation of the Act is an edifice on which rests the task of saving the girl child," it said.

The top court dismissed a plea for striking down or diluting the provisions of the Pre­conception and Pre­natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 on the ground that clerical errors like maintaining records of the patients has led to unreasonable actions of raid, seizure and sealing of premises and imprisonment, fine and suspension of doctors' licences.

"Nothing can be more sinister, immoral and anti­-social act than allowing female foeticide," a bench of Justices Arun Mishra and Vineet Saran said, adding the non-maintenance of the record is the very foundation of offence.

It rejected a plea by the Federation of Obstetrics and Gynaecological Societies of India  (FOGSI).

Senior advocates Soli Sorabjee and Shyam Divan, representing the federation, contended that the Act has failed to distinguish between criminal offences and the anomalies in paperwork like incomplete ‘F’­ Forms, clerical mistakes such as writing NA or incomplete address, no mentioning of the date, objectionable pictures of Radha Krishna in sonography room. 

The enforcement authorities charged the doctors with the heinous crime of female foeticide and sex determination and that too merely for unintentional mistakes in record keeping, they said.     

After examining the law and its object, the bench said dilution of the provisions would only defeat its purpose to prevent female foeticide, and relegate the right to life of the girl child under Article 21 of the Constitution, to "a mere formality".

"A responsible doctor is supposed to know before undertaking such pre­natal diagnostic test etc what is he undertaking and what his responsibilities are. If he cannot understand the form he is required to fill and the impact of medical findings and its consequences which is virtually the pre-requisite for undertaking a test, he is not fit to be a member of a noble medical profession," the bench said.     

The court also pointed out due to the pervasive nature of crimes against the children and women, the Legislature has deemed it fit to employ a reversed burden of proof in these cases.

If the provisions were given a go-­bye under the guise of a clerical error, the Act would be rendered otiose. The restriction cannot be said to be excessive and beyond what is required in the public interest, it added.

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