(1.) The petitioner challenges the order of suspension of registration of a sonogram installed in the hospital run by the petitioner and sealing of the equipment. By the impugned notice issued on 27.11.2008, the petitioner had been directed to make an arrangement of qualified Sonologist as per the provisions of the Pre-conception and Pre- Natal Diagnostic Techniques (Prohibition of Sex Selection) Act (hereinafter called the 'PNDT Act'). The suspension notice was subject of a challenge in appeal to a Government under Section 21 before the appropriate authority and it was dismissed by order dated 13.03.2009. The suspension notice and the order passed in the appeal are the matters in challenge through this writ petition. By an ordinance issued in 2009 called the Pre-conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Haryana Validation Ordinance, 2009, the appropriate authority had been notified and it validated all acts done in the name of appropriate authority even prior to the date of the notification. The ordinance is also the subject of challenge but no arguments were advanced and I proceed to dispose of the writ petition only in so far as it contains the challenge to the order of suspension of the registration under the PNDT Act.
(2.) It is an admitted fact that at the time when the registration of the equipment was made in the hands of the petitioner, there had been a medical practitioner, who had held a medical qualification recognized under the Indian Medical Council Act but subsequently he had resigned from the petitioner's hospital and there had been no Sonologist or imaging specialist resulting in the suspension of the licence. The petitioner's challenge is on the basis that he had a medical qualification recognized by the Central Council of Indian Medicines and according to the petitioner, as a person, who has a BAMS (Bachelor in Ayurvedic Medicine & Surgery) qualification, he shall be permitted to have the registration in the same manner as the person, who has a MMBS (Bachelor of Medicine and Bachelor of Surgery) degree. The petitioner complains that the suspension of licence amounted to gross breach fundamental right to equality and operated as discriminatory. According to the petitioner, the equipment is necessary for the very same reason as an allopath practicing medicine and the petitioner could not be denied the right of registration and the use of the equipment.
(3.) Significantly the writ petition does not challenge the vires of the Act or the rules which have been framed thereunder. The challenge, however, is to a notification issued under Section 17(2) with retrospective effect which also was not pressed at the time of arguments. The Act imposes a system of registration of persons having the equipment to prevent the prevalent misuse by securing the data that could be collected by the user of the equipment for foeticide. The declared object of the Act is to provide for the prohibition of sex selection, before or after conception and for regulation of pre-natal diagnostic techniques for the purposes of detecting genetic abnormalities or metabolic disorders or chromosomal abnormalities or certain congenital malformations or sex-linked disorders and for the prevention of their misuse for sex determination leading to female foeticide and for matters connected therewith or incidental thereto. It is not denied that the petitioner has installed an elector sonogram in his hospital which is capable in carrying out "pre-natal diagnostic procedure". The Act seeks to regulate the functioning of genetic counselling centres, genetic laboratories or genetic clinics by imposing restrictions of the user of a sonogram for conducting activities relating to certain pre-natal diagnostic techniques. The regulation includes the necessity of having to employ a person, who shall possess the qualifications, as may be prescribed and restricts also the place where any pre-natal diagnostic technique is conducted. Section 3-A specifically prohibits a person including a specialist in the field of infertility from conducting the sex selection of a woman or a man or of both or on any tissue, embryo, conceptus, fluid or gametes derived from either or both of them. Section 3-B contains the prohibition on sale of ultrasound machine, etc., to persons, who are not registered under the Act. The need for registration of a person, who possesses an ultrasound machine is obviously to ensure that the sex identification which is possible through the ultrasound machine is done in a controlled area of persons, who use it for appropriate diagnostic purposes, for detecting certain abnormalities which are specified under Section 4(2) of the PNDT Act. The said provision states: