Qualification clause for the purposes of pre-natal diagnostic tests(PNDT) invalid #indianlaws

Delhi High Court has held 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; Rule 3(3)(1)(b) of the PNDT Rules (as it stands after the amendment with effect from 9th January, 2014) is ultra vires the PNDT Act to the extent that 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.

Delhi High Court had before them, the issue pertaining to declaration that (a) that Section 2(p) of the Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994 (PNDT Act) to the extent it recognises a person possessing a post-graduate qualification in ultrasonography or imaging techniques as bad inasmuch as there is no post-graduate qualification in ultrasonography or imaging techniques recognised by the MCI; and (b) Rule 3(3)(1)(b) of the PNDT Rules to the extent it permits sonologists, imaging specialists or registered medical practitioner having six months training or one year experience in sonography or image scanning to set up ultrasound clinics or imaging centres, as unconstitutional, as there is no qualification in sonography and image scanning recognised under the Indian Medical Council Act, 1956 (MCI Act).

Court observed that the PNDT Act was enacted to restrict foetal sex determination tests and restrict the use of ultrasound machines only by authorised individuals who could be monitored.

Division Bench of the Delhi High Court held Section 2 (p) to be bad to the extent of including persons with post-graduate qualification. It further noted that the Act does not empower the statutory bodies constituted thereunder or the Central Government to devise and coin new qualification.

While disposing of the petition, Court passed following directions:

  1. 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;
  2. 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;
  3. 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 Counselling Centre;
  4. 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;
  5. 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,
  6. Rule 3(3)(1)(b) of the PNDT Rules (as it stands after the amendment with effect from 9th 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.

 

[Indian Radiological and Imaging Association vs. Union of India and Anr.]

 (Delhi HC, 17.02.2016)

W.P.(C) Nos.6968/2011, 2721/2014 & 3184/2014