Mere MBBS CANNOT perform Ultrasound: SC stays Delhi HC Order

We are of the view that the judgment of the Delhi High Court needs to be stayed during the pendency of these proceedings. The judgment of the High Court squarely impinges upon the directions issued by this Court in Voluntary Health Association of Punjab- Supreme court

New Delhi: In a major setback to MBBS practitioners, hoping to perform ultrasound based on the Delhi High Court order without having a post-graduate qualification in the field or undergoing the mandatory six-months training, the Supreme Court has now stayed the said order stating that the High Court has trenched upon an area of legislative policy.

Medical Dialogues team had earlier reported that in the year 2016, the Delhi High court had declared  Rule 3(3)(1)(b) of the PNDT Rules (as it stands after the amendment with effect from 9th January, 2014) as ultra vires to the extent it requires a person desirous of setting up a Genetic Clinic / Ultrasound Clinic / Imaging Centre to undergo six months training imparted in the manner prescribed in the Six Months Training Rules, observing the following

For meeting the said objective/purpose ( of the PC-PNDT Act), we fail to understand what difference it makes, whether the sonologist or imaging specialist i.e. a person who can use and operate an ultrasound machine, is a mere MBBS or has a Post Graduate qualification in medicine or has experience of one year or has undergone six months training..…

The judgement had a huge impact on the medical fraternity, by removing the restrictions on the legal rules of the performance of ultrasound, thereby allowing even MBBS doctors to make use of the modality.

Read Also: Delhi High Court Judgement clarifies who can do an ultrasound

The judgement seemed to have become a bone of contention between the specialists and generalists in the medical community, with many radiologists opposing the decision. This finally culminated in IRIA  filing a review petition against the said judgement in the apex Court.

Read Also: IRIA challenges HC judgement on ultrasound practice in Supreme Court

A bench of Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud heard arguments on behalf of the Centre and other bodies including the Medical Council of India and IRIA in relation to 2016 Delhi High Court verdict and gave interim relief to IRIA stating that Prima facie, the High Court has erred in its finding that there is an absence of statutory power. 

Prima facie, these provisions indicate that Parliament has conferred upon the Central government rule making authority to specify minimum qualification for persons to be employed at genetic counselling centres, laboratories and clinics. Specification of qualifications, in our view, should be read in a purposive sense which will fulfil the object of the law. Even on a plain and natural construction of the words used by Parliament, the specification of qualifications must necessarily comprehend the power to prescribe training. The rationale for this is that the training would sensitize the person concerned to the salutary object and purpose of the legislation which has been enacted by Parliament to deal with a serious social evil and be conscious of the misuse of sex-selection tests. Pre-natal diagnostic procedures are susceptible to grave misuse.

Parliament which has the unquestioned authority and legislative competence to frame the law considered it necessary to empower the Central government to frame rules to govern the qualifications of persons employed in  genetic counselling centres, laboratories and clinics. The wisdom of the legislature in adopting the policy cannot be substituted by the court in the exercise of the power of judicial review. Prima facie the judgment of the Delhi High Court has trenched upon an area of legislative policy. Judicial review cannot extend to reappreciating the efficacy of a legislative policy adopted in a law which has been enacted by the competent legislature. Both the Indian Medical Council Act, 1956 and the PCPNDT Act are enacted by Parliament. Parliament has the legislative competence to do so. The Training Rules 2014 were made by the Central Government in exercise of the power conferred by Parliament. Prima facie, the rules are neither ultra vires the parent legislation nor do they suffer from manifest arbitrariness.

With the above observations,  the apex court stated that pending final disposal, there shall be a stay of the operation of the judgment and order of the Delhi High Court dated 17 February 2016.

For the reasons that we have indicated, we are of the view that the judgment of the Delhi High Court needs to be stayed during the pendency of these proceedings. The judgment of the High Court squarely impinges upon the directions issued by this Court in Voluntary Health Association of Punjab. We direct in consequence that the judgment of this Court in Voluntary Health Association of Punjab shall be strictly enforced by all states and union territories untrammelled by any order of any High Court or any other court.

Attached is the judgement below