PCPNDT Act and alcohol ban in Bihar

Over the years, the topic of Pre-conception and Pre-natal Diagnostic Techniques (PCPNDT) Act and its draconian provisions has been chewed to the bone, thanks to the umpteen prosecutions of doctors for errors in record-keeping under this Act.

Section 4(3) of the PCPNDT Act states –

“Provided that the person conducting ultrasonography on a pregnant woman shall keep complete record thereof in the clinic in such manner, as may be prescribed, and any deficiency or inaccuracy found therein shall amount to contravention of provisions of section 5 or section 6 unless contrary is proved by the person conducting such ultrasonography.”

At the same time, section 23(1) of PCPNDT Act states –

“Any medical geneticist, gynaecologist, registered medical practitioner or any person who owns a Genetic Counselling Centre, a Genetic Laboratory or a Genetic Clinic or is employed in such a Centre, Laboratory or Clinic, whether on a honorary basis or otherwise, and who contravenes any of the provisions of this Act or rules made thereunder shall be punishable with 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.”

Thus, on reading section 4(3) and 23(1) together, it is clear that even if the accused (doctor) is able to prove the contrary (as per section 4(3)), it is futile, because error in record keeping is an offence independent of sex-determination and, as per section 23(1), attracts the same degree of punishment as sex-determination. A full bench of Gujarat High court (Suo Motu vs State of Gujarat reported in 2009 Cri.L.J. 721) took up the issue to decide whether errors in record-keeping constitute an offence under PCPNDT Act. The honourable High Court concluded that under PCPNDT Act, error in record-keeping is not merely a procedural lapse but an independent offence and has to be treated and tried accordingly.

Understandably, a great majority of doctors are of the opinion that such severe prosecution and punishment for apparently trivial errors in record-keeping is highly disproportionate and, therefore, unjust. Consequently, the Indian Medical Association (IMA), which is the largest representative organisation of modern medicine practitioners in India, filed a writ petition in the Supreme Court (SC) of India (vide WP No. 575 of 2014), challenging multiple provisions of PCPNDT Act, highlighting the severe prosecution of doctors for trivial errors in record-keeping. The honourable Supreme Court decided this WP on 8th Nov 2016. In its judgment, the honourable SC said the following:-

"In our considered opinion, whenever there is an abuse of the process of the law, the individual can always avail the legal remedy. As we find, neither the validity of the Act nor the Rules has been specifically assailed in the writ petition. What has been prayed is to read out certain provisions and to add certain exceptions. We are of the convinced view that the averments of the present nature with such prayers cannot be entertained and, accordingly, we decline to interfere."

Interestingly, in September 2016, the Patna High Court, in a very important verdict (vide CWJC No. 6675 of 2016), declared certain provisions of the Bihar Excise (Amendment) Act, 2016 as ultra vires the Constitution (i.e. unconstitutional). But why are we discussing the Patna High Court judgment related to alcohol prohibition in an article that started with the PCPNDT Act? What's the connection? The answer is – the similarities in legal provisions of these two acts.

The legality of certain provisions of Bihar Excise (Amendment) Act was challenged in Patna High Court. Some of the controversial provisions of the Bihar Excise (Amendment) Act were -

1)--Presumption of guilt of the accused and putting the entire onus of rebutting charges upon the accused.

2)--Certain section of the Act conferred unguided, uncontrolled and unfettered power upon the delegatee of the State, which was liable to be abused.

3)--Certain sections of the act imposed severe degree of minimum punishment which was disproportionate to the offence committed. The judiciary would thus be left with no discretionary power as regards awarding a lesser sentence even if such mitigating circumstances existed in a particular case.

4)—Provision for sealing of properties allegedly involved in commission of offences and their confiscation upon conviction.

The court disqualified each of the above provisions. Here are few select excerpts from the Patna High Court verdict, as follows –

Regarding presumption of guilt -

"...The provision reverses the criminal jurisprudence of prosecution having the liability to prove the guilt beyond reasonable doubt. Here a person is presumed to be guilty unless he proves to the contrary. The presumption of innocence is totally taken away and the burden of proof thereof is put on the accused. Lest, I may be misunderstood, I am not saying that this provision of section 48 of the Act is ultra vires in any manner. Such provisions are found in many laws; but why I have referred it is that a person, charged with any offence under the Act, starts with a presumption of guilt against him till he proves himself innocent. For any reason, if he fails to prove his innocence, he would straightaway be liable to punishment, which would be of minimum 10 years imprisonment with astronomical fine and would lose his entire property by virtue of confiscation and the Courts are rendered helpless in the matter even though there may be mitigating circumstances. "

"...Substantive law without guidance and without procedural safeguards can only be termed as draconian, it being completely vague, uncertain and unlimited. Even though it may professed to have a social objective to attend, the means to achieve the same are clearly unconstitutional."

Regarding uncontrolled power of authorities -

"...In my view, the wide unguided powers conferred on the executive are virtually giving the executive the power to abrogate or stultify the whole or any part of the legislative enactment itself. That, to my mind, cannot by any stretch of reason, be held to be valid much less in absence of the legislative policy in the Act itself.”

“...A delegate, then, could exercise the power in an unfettered, unbridled and unguided manner and there would be no control of the delegatee by the legislature itself once such power was conferred on the delegatee. To me, that cannot be accepted."

Regarding disproportionate punishment –

The Patna High Court emphasized upon the doctrine of proportionality i.e. punishment should be commensurate with the crime. While declaring the provision of high degree of minimum punishment under the Bihar Excise (Amendment) Act as illegal, the court referred to the provisions of Narcotic Drugs and Psychotropic Substances Act, 1985, wherein a system of graded punishment has been prescribed, depending upon whether the quantity of substance in possession is small, more than small or commercial, thus leaving enough scope for the court to award punishment proportionate to the offence.

Though it would not be possible to directly compare two different Acts which deal with two different social problems, the similarities between Bihar Excise (Amendment) Act and PCPNDT Act are striking. The common threads in both these Acts are -- draconian nature of certain provisions, the blanket prescription of high degree of minimum punishment, disproportionate punishment for the degree of offence, and criminalisation of unintentional and / or trivial acts of omission.

The Patna High Court verdict gives a ray of hope to doctors -- a hope that in future, a legally better-drafted, more precise and well-argued writ petition in a Constitutional Court, testing specific provisions of the PCPNDT Act vis a vis constitutional principles, may result in a more rational and effective legislation -- A legislation that would actually curb the heinous crime of sex determination, rather than just piling-up paperwork.

(This write-up is only a general advisory and not a substitute for qualified legal opinion. Reader discretion is therefore recommended. If you find this write-up useful, please share it with your doctor-friends. TechnoScope Systems is a venture by doctors, for doctors. To know more about how we can assist you, please visit our website. You can write to the author at: sohonica@gmail.com)