IMA brings relief to Medical Profession under PNDT Act

IMA brings relief to Medical Profession under PNDT Act

Brief note on the judgment dated 17.02.16 passed by Hon’ble High Court, Delhi, in the matter of “Indian Medical Association vs Union of India: WP (C) NO. 2721/2014

On 09.01.14, the Union of India amended the PNDT Rule, vide Notification No. DL 33004/99 whereby under the amended Rules, the Qualified Doctor/MBBS/ Sonologist/ Imaging Specialist desirous of setting up a Genetic Clinic / Ultrasound Clinic / Imaging Centre is to undergo six months training imparted in the manner prescribed in the Six Months Training Rules 2014.

As the amendment in the PNDT Rules, would take away the vested rights of Qualified Doctor/ MBBS/ Sonologist/ Imaging Specialist to operate Genetic Clinic / Ultrasound Clinic / Imaging Centre and would not serve any purpose as far as scope of the PNDT Act is concerned and the same is also not in the interest of Doctors around the country, therefore, IMA took up the said issue of National Importance and challenged the same before the Hon’ble High Court of Delhi at New Delhi, vide WP (C) No. 2721/2014.

As the issue raised by the IMA was of great importance, National Issue and there was no chance for any margin of error, therefore IMA engaged Mr. Jayant Bhushan, Senior Advocate [well renowned advocate of the Country] to contest the matter.

IMA on person level of the office bearer took part in the proceedings of the said case before the Hon’ble Court and also provided help to the legal team in issue related to the medical field and were practically present in each and every hearing.

The matter was argued for 6-7 hearings and Mr. Jayant Bhushan, Sr. Adv raised the following legal issues:

(i)          that prior to coming into force of the PNDT Act, even a person having a degree of MBBS, not necessarily of M.D. (Radiology) could own and operate a ultrasound machine;

(ii)        that Section 2(p) of the Act also includes in the definition of sonologist or imaging specialist, every such person who holds a medical qualification recognised by the MCI, again recognising persons holding the MBBS qualification as sonologist and imaging specialist;

(iii)       that there is no post-graduate qualification in ultrasonography or in imaging techniques;

(iv)       that under Section 32 of the Act the power of the Central Government to make Rules extends only to make rules for minimum qualifications of persons employed at the registered genetic counseling centre, genetic laboratory or genetic clinic and not to make rules for persons employed at ultrasound clinics;

(v)        that the technique of ultrasound is used for diagnostic purpose qua various organs and not only for sex determination and thus all clinics using ultrasound machines would not qualify as genetic clinics;

(vi)       instance is given of specialist hospitals / clinics dealing with specific organs, say heart, lung or liver and it was contended that they also use ultrasound machine but can by no stretch of imagination be called a genetic clinic;

(vii)      that the requirement, in Rule 3(3)(1)(b) as amended with effect from 9^th January, 2014, of six months training can only be qua registered medical practitioners as defined in Rule 2(ee) of the Drugs and Cosmetics Rules, 1945 and cannot possibly be qua those who qualify as sonologist within the meaning of Section 2(p) of the Act;

(viii)    alternatively, Rule 3(3)(1)(b) has to be confined to the genetic clinics only and cannot be extended to ultrasound clinics; all ultrasound clinics are not genetic clinics; those who have been practising as a radiologist or have been using ultrasound for tens of years cannot be asked to undergo six months training or take any test, as the same cannot take the place of their experience of decades;

(ix)       The issue raised by amending the PNDT Act, are of moral issues and not legal, therefore amendment is itself bad.

(x)        that the amendment of Rule 3(3)(1)(b) w.e.f. 9th January, 2014 takes away the one year experience in sonography or image scanning as existed earlier and thus Rule 6(2) of the Six Months Training Rules is bad; and,

(xi)       that under Rule 8 there was/is a right of renewal of registration; the amendment w.e.f. 9th January, 2014 takes away the said right; reliance is placed on G.P. Singh’s Interpretation of Statues to urge that interpretation rendering certain words otiose, cannot be adopted and on Dr. Indramani Pyarelal Gupta Vs. W.R. Nathu AIR 1963 SC 274 laying down that the Central Government as a delegate of the legislature, without being specifically empowered can only make Rules having prospective operation and not with retrospective effect.

It is relevant to point out that Indian Radiological and Imaging Association [IRIA] petitioner in the WP (C) No. 6968/2011 argued against IMA and contended that the petition filed on behalf of IMA should be dismissed.

On the other hand, Sonologist Society of India, petitioner in the WP (C) No. 3184/2014 adopted the arguments of the IMA.

After considering the issue raised by IMA in the WP (C) No. 2721/2014 the Hon’ble High Court came to the conclusion that the PNDT Act, raised a moral issue rather than a legal issue in relation to sex determination by the doctors and any further qualification to already Sonologist/ Imaging Specialist in relation to same may not serve any purpose. The relevant para from the judgement delivered by the Hon’ble High Court is reproducing as under:-

“We are of the opinion that for the purposes of prevention of sex determination through ultrasound machines or other radiological techniques, it matters not whether the ultrasound machine is in the hands of an MBBS or an MBBS with six months training or an MBBS with one year experience who has cleared the competency test or in the hands of MD radiologist / obstetrics. The qualification of MBBS itself is a highly sought after qualification, to secure which one has to first appear in a competitive examination for admission to a medical college and thereafter has to undergo the rigours of passing the MBBS examination. By no stretch of imagination can it be said that an MBBS qualified person lacks education or understanding to be not able to comprehend the fatal consequence of female foeticide as a result of sex determination or the morality behind the same. In our opinion, to understand the said aspects, the one year experience or passing the competency test or undergoing the six months training or acquiring the post-graduate qualification, add no further to the person. To make an as educated a person as a “Doctor” understand the ill effects of sex determination and that use thereof for the purposes of female foeticide is a crime, there is no need to require him either to undergo post-graduation or a six months training or gain a one year experience or pass a competency test. By doing so, he will not be less likely to break the said law than he would be without the same. It is not as if holding a medical qualification recognised by MCI does not have any concern with the conduct/behaviour of the holder thereof. The holder thereof is required to abide by the standards of professional conduct and etiquette and code of ethics prescribed by MCI in exercise of power under Section 20A of the MCI Act. Moreover, when the holder of medical qualification is capable of being sensitised with the code of conduct/etiquette/ethics, he/she can certainly be sensitised to the issue of PNDT without being required to undergo any training/experience.”

Further, after detailed discussion before the Hon’ble High Court of the issued raised by the IMA, the Hon’ble High Court allowed/ disposed off the Writ Petition of IMA with the following declarations/directions :-

(i)          that Section 2(p) of the PNDT Act defining a Sonologist or Imaging Specialist, is bad to the extent it includes persons possessing a postgraduate qualification in ultrasonography or imaging techniques – because there is no such qualification recognised by MCI and the PNDT Act does not empower the statutory bodies constituted thereunder or the Central Government to devise and coin new qualification; - Meaning thereby as per the definition Under Section 2(p) of the PNDT Act a MBBS is a sinologist or Imaging Specialists.

(ii)        The PNDT Act/Rules does not apply to the MBBS doctor who gives a declaration that they will not be using the ultrasound machine for sex determination or pre-natal diagnostic procedure.

(iii)       Rule 3(3)(1)(b) of the PNDT Rules (as it stands after the amendment with effect from 9th January, 2014) is ultra vires to the PNDT Act 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.

The relevant paras from the judgment are reproduced herein under for ready reference:

“98. We accordingly dispose of these petitions with the following declarations / directions:

(i)      that Section 2(p) of the PNDT Act defining a Sonologist or Imaging Specialist,is bad to the extent it includes persons possessing a postgraduate qualification in ultrasonography or imaging techniques – because there is no such qualification recognized by MCI and the PNDT Act does not empower the statutory bodies constituted thereunder or the Central Government to devise and coin new qualification;

(ii)    We hold that all places including vehicles where ultrasound machine or imaging machine or scanner or other equipment capable of determining sex of the foetus or has the potential of detection of sex during pregnancy or selection of sex before conception, require registration under the Act;

(iii)   However, if the person seeking registration (a) makes a declaration in the form to be prescribed by the Central Supervisory Board to the effect that the said machine or equipment is not intended for conducting pre-natal diagnostic procedures; (b) gives an undertaking to not use or allow the use of the same for pre-natal diagnostic procedures;,and, (c) has a “silent observer” or any other equipment installed on the ultrasound machines, as may be prescribed by the Central Supervisory Board, capable of storing images of each sonography tests done therewith, such person would be exempt from complying with the provisions of the Act and the Rules with respect to Genetic Clinics, Genetic Laboratory or Genetic Counseling Centre;

(iv)   If however for any technical reasons, the Central Supervisory Board is of the view that such “silent observer” cannot be installed or would not serve the purpose, then the Central Supervisory Board would prescribe other conditions which such registrant would require to fulfil, to remain exempt as aforesaid;

(v)    however such registrants would otherwise remain bound by the prohibitory and penal provisions of the Act and would further remain liable to give inspection of the “silent observer” or other such equipment and their places, from the time to time and in such manner as may be prescribed by the Central Supervisory Board; and,

(vi)   Rule 3(3)(1)(b) of the PNDT Rules (as it stands after the amendment with effect from 9^th January, 2014) is ultra vires the PNDT Act 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.”

With the above finding, the matter is disposed off in favour of IMA.

IMA hereby congrats all members of IMA for the great success.