Court on its Own Motion vs Union of India and Others

Having read the news item published in Hindustan Times (English Edition) dated 3rd July, 2014 regarding alarming increase in pre-natal sex determination amongst the pregnant women in Jharkhand, the Court vide order dated 7th August, 2014 has taken suo motu cognizance and registered it as a Public Interest Litigation. We have heard Mr. Mukesh Kumar, learned Amicus Curiae and Mr. Rajesh Kumar, learned G.P.V.

In the order dated 07.08.2014 the Court in paragraph 2 observed as under:

"2. The highest number of such abortions; has been reported from East Singhbhum i.e. 23.6% and in Ranchi 17%. The average sex ratio at birth in Jharkhand is 928 females per 1000 males as per Annual Health Survey, 2011-12. The low sex ratio at birth and an increase in number of abortions after sex determination tests at ultrasound centres in Jharkhand indicate that the Government measures to curb pre-natal gender determination have gone in a toss. It is also reported in the above newspaper that the surge in pre-natal sex determination is attributed to the fact that since 2012 the Health Department and its nodal organization Jharkhand Rural Health Mission Society (JRHMS) have not conducted any large scale drive to enforce the laws against such tests. The Health Department raided 404 rogue centers and sealed 39 of them last year, but most of the owners have been left off after warnings."

Further the Court directed the respondents to inform the Court about the following points:-

i. The registration obtained by those Genetic Counselling Centre/Genetic Laboratory/Genetic Clinic functioning in the State of Jharkhand.

ii. Number of Genetic Counselling Centre/Genetic Laboratory/Genetic Clinic functioning in the State of Jharkhand.

iii. The action taken in respect of those centres, who are functioning without registration.

iv. Other relevant details.

Pursuant to the order of this Court the Respondent No. 2 filed counter affidavit stating therein that no Genetic Counselling Centre/Genetic Laboratory/Genetic Clinic are registered or functional in the State of Jharkhand and there are two other bodies like IVF centers/infertility cure centers using equipments/technique capable of making sex selection before or after conception. Total number of registered Ultrasonography Clinic in the State is 695. It is further submitted that the direction to all District Appropriate Authorities are issued to submit action taken against inspected and sealed clinics and also the instructions have been given for awareness and inspection of the Ultrasonography.

The learned Amicus Curiae, Mr. Mukesh Kumar, has drawn our attention to the recent judgment of the Hon''ble Supreme Court in the case of Voluntary Health Association of Punjab Vs. Union of India (UOI) and Others, wherein the Hon''ble Supreme Court issued several directions for implementation of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 is issued to all the State Governments and also to file compliance report within three months.

Paragraph 9 of the aforesaid decision reads as follows:-

In such circumstances, the following directions are given:

9.1. The Central Supervisory Board and the State and Union Territories Supervisory Boards, constituted under Sections 7 and 16-A of PN & PNDT Act, would meet at least once in six months, so as to supervise and oversee how effective is the implementation of the PN & PNDT Act.

9.2. The State Advisory Committees and District Advisory Committees should gather information relating to the breach of the provisions of the PN & PNDT Act and the Rules and take steps to seize records, seal machines and institute legal proceedings, if they notice violation of the provisions of the PN & PNDT Act.

9.3. The committees mentioned above should report the details of the charges framed and the conviction of the persons who have committed the offence, to the State Medical Councils for proper action, including suspension of the registration of the unit and cancellation of licence to practice.

9.4. The authorities should ensure also that all genetic counselling centres, genetic laboratories and genetic clinics, infertility clinics, scan centres, etc. using pre-conception and pre-natal diagnostic techniques and procedures should maintain all records and all forms, required to be maintained under the Act and the Rules and the duplicate copies of the same be sent to the district authorities concerned, in accordance with Rule 9(8) of the Rules.

9.5. States and District Advisory Boards should ensure that all manufacturers and sellers of ultrasonography machines do not sell any machine to any unregistered centre, as provided under Rule 3-A and disclose, on a quarterly basis, to the State/Union Territory concerned and the Central Government, a list of persons to whom the machines have been sold, in accordance with Rule 3-A(2) of the Rules.

9.6. There will be a direction to all genetic counselling centres, genetic laboratories, clinics, etc. to maintain Forms A, E, H and other statutory forms provided under the Rules and if these forms are not properly maintained, appropriate action should be taken by the authorities concerned.

9.7. Steps should also be taken by the State Government and the authorities under the Act for mapping of all registered and unregistered ultrasonography clinics, in three months'' time.

9.8. Steps should be taken by the State Governments and the Union Territories to educate the people of the necessity of implementing the provisions of the Act by conducting workshops as well as awareness camps at the State and district levels.

9.9. Special cell be constituted by the State Governments and the Union Territories to monitor the progress of various cases pending in the courts under the Act and take steps for their early disposal.

9.10. The authorities concerned should take steps to seize the machines which have been used illegally and contrary to the provisions of the Act and the Rules thereunder and the seized machines can also be confiscated under the provisions of the Code of Criminal Procedure and be sold, in accordance with law.

9.11. The various courts in this country should take steps to dispose of all pending cases under the Act, within a period of six months. Communicate this order to the Registrars of various High Courts, who will take appropriate follow-up action with due intimation to the courts concerned.

From perusal of the aforesaid judgment it appears that the subject matter of the present PIL is also the subject matter before the Hon''ble Supreme Court and the Hon''ble Supreme Court is also monitoring the case. The present Public Interest Litigation is disposed of with a direction to the respondents to make strict compliance of the order passed in Voluntary Health Association of Punjab (supra) in its letter and spirit. We place on record the valuable assistance rendered by learned Amicus Curiae, Mr. Mukesh Kumar.