NO Form F relief: Supreme Court rejects FOGSI Petition, Upholds penal provisions for Mistakes in Records

A responsible doctor is supposed to know before undertaking such pre­natal diagnostic test etc. what is he undertaking and what his responsibilities are.

New Delhi: Non-maintenance/Incomplete Form F under the PC-PNDT Act would continue to attract strong penal provisions including suspension and criminal cases as the Supreme court in a thorough judgement refused to water down the relevant provisions of the act stating that Complete contents of Form ‘F’ are held to be mandatory

The court rejected the writ petition has been filed by the Federation of Obstetrics and Gynaecological Societies of India (FOGSI) that highlighted the issues and problems affecting the practice of obstetricians and gynaecologists across the country under the Pre­conception and Pre­natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994.

The petition challenged the constitutional validity of Sections 23(1) and 23(2) of the Act and seeking direction in the nature of certiorari/mandamus for decriminalising anomalies in paperwork/record keeping/clerical errors in regard of the provisions of the Act for being violative of Articles 14, 19(1)(g) and 21 of the Constitution of India.

Section 23(1) of the Act calls for criminal punishment for violations under the Act (imprisonment for a term which may extend to three years and with fine which may extend to ten thousand rupees and on any subsequent conviction, with imprisonment which may extend to five years and with fine which may extend to fifty thousand rupees

Section 23(2) of the Act empowers the State Medical Council to suspend the registration of any doctor indefinitely, who is reported by the Appropriate Authority for necessary action, during the pendency of trial.

The petition pointed out 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.

In Its petition, FOGSI pointed out that the Act was enacted with the objective to prohibit pre­natal diagnostic techniques for determination of sex of the foetus leading to female foeticide. But unfortunately, its implementation is more in letter and less in spirit. It was contended that equating clerical errors on the same footing with the actual offence of sex determination shows the inherent weakness in the language of the Act.

It is further contended that the Appropriate Authority appointed under the Act conducts inspections and raids in various districts and cities and even if there are mere anomalies in the paperwork, it seals the sonography machine and files a criminal case under the Act. As a result, doctors who do not conduct sex determination and gender selection are being targeted on the basis of aforesaid anomalies.

The counsel for the petitioner argued that 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, incomplete filling of Form ‘F’, indication for sonography not written, faded notice board and not legible, striking out details in the Form ‘F’ etc., thereby charging the members of the petitioner- Society for heinous crime of female foeticide and sex determination and that too merely for unintentional mistakes in record keeping. The Act provides same punishment for the contravention of any provision of the Act, thus equating the anomalies in paperwork and the offence of sex determination and gender selection on the same pedestal and prosecuting doctors when even there is no mens rhea.

The respondents, the government took a stand in defending the provisions of the Act, clearly arguing that the relevant provisions cannot be diluted.

The government pointed out that record keeping is important for proper implementation of the Act and the stringent provisions with regard to maintenance of records and punishment for non­compliance cannot be equated or considered as the infirmity of the Act. If it is exempted from the mandatory requirement, the probable involvement in sex determination and sex selection in the guise of use of diagnostic techniques would continue unabated.

The non­maintenance of records is not merely a technical or procedural lapse in the context of sex determination, it is the most significant piece of evidence for identifying the accused. It is further contended that clerical errors in Form ‘F’ fall under Section 4 of the Act and any deficiency or inaccuracy found therein shall amount to a contravention of the provisions of Section 5 or 6 of the Act unless the contrary is proved by the person conducting such ultrasonography.

The Bench after going through the matter in detail noted that proper record keeping is required by doctors in many acts, not just this one

The Act and Rules are not the only regulatory framework which requires the medical fraternity to keep proper record. The medical profession has highly specialised nature and considering the nature of services rendered by medical professional, proper maintenance of records is an integral part of the medical services.

The court observed that even the MCI Code of Ethics call for proper record keeping by doctors, calling any lapse a misconduct

The court scrutinised in detail each and every information that is required in FORM F finding all of them to be appropriate and noting that  In case this information is kept vague, the violation of the Act would be blatant and unchecked and the offence can never be detected.

..... In case the indications and the information are not furnished as provided in the Form ‘F’ it would amount that condition precedent to undertake the test/procedure is absent. There is no other barometer except Form ‘F’ to find out why the diagnostic test/procedure was performed. In case such important information beside others is kept vague or missing from the Form, it would defeat the very purpose of the Act and the safeguards provided thereunder and it would become impossible to check violation of provisions of the Act. It is not the clerical job to fill the form, it is a condition precedent for undertaking test/procedure.

With all due regards to the submission advanced on behalf of petitioner ­Society that it is a clerical job, is wholly without substance but it is a responsible job of the person who is undertaking such a test i.e., the Gynaecologist/ Medical Geneticist/ Radiologist / Paediatrician / Director of the Clinic/Centre/Laboratory to fill the requisite information. In case he keeps it vague, he knows fully well that he is violating the provisions of the Act and undertaking the test without existence of the conditions precedent which are mandatory to exist he cannot undertake test/procedure without filling such information in the form. There is no other way to ensure that test is undertaken on fulfilment of the prescribed conditions. There is nothing else but the record which required to be maintained and on the basis of which counter­check can be made. There is no other barometer or criteria to find out the violation of the provisions of the Act. Rule 9(4) also requires that every Genetic Clinic to fill Form ‘F’ wherein information with regard to details of the patient, referral notes with indication and case papers of the patient are required to be filled and preserved. Form ‘F’ lays down the indicative list for conducting ultrasonography during pregnancy.

The court went on with the reasoning of the form and why a doctor needs to full it

Form ‘F’ being technical in nature gives the insight into the reasons for conducting ultrasonography and incomplete Form ‘F’ raises the presumption of doubt against the medical practitioner. In the absence of Form ‘F’, Appropriate Authorities will have no tool to supervise the usage of ultrasound machine and shall not be able to regulate the use of the technique which is the object of the Act....

... It is absolutely clear that the provisions in the Act in question cannot be termed as arbitrary or illegal or unreasonable. The provisions are not vague. 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. Such culpable negligence is not warranted from a doctor. It is crystal clear from the provisions of the Act which can be gathered by a person of ordinary intelligence and they can have fair notice of what is prohibited and what omission they should not make.

Citing previous cases, the court noted the nexus between wrong information/no information in Form F and  It cannot be said to be a case of clerical or technical lapse

Non-maintenance of the record is a springboard for the commission of the offence of foeticide, not just a clerical error. 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 Rules. These Rules are necessary for the implementation of the Act and improper maintenance of such record amounts to violation of provisions of Sections 5 and 6 of the Act, by virtue of proviso to Section 4(3) of the Act. In addition, any breach of the provisions of the Act or its Rules would attract cancellation or suspension of registration of Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic, by the Appropriate Authority as provided under Section 20 of the Act.

....There is no substance in the submission that provision of Section 4(3) be read down. 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. 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 sex­determination.

Section 23 of the Act, which provides for penalties of offences, acts in aid of the other Sections of the Act is quite reasonable.....

Therefore, 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 court noted

Dismissing the writ petition, no case is 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. Complete contents of Form ‘F’ are held to be mandatory.