HIGHLIGHTS FROM THE JUDGEMENT19. At this stage, the counsel for the petitioner in W.P.(C) No.6968/2011(IRIA) contended that PNDT Act was concerned with the misuse of the techniques of ultrasound for sex determination but has ended up, permitting all MBBS Doctors to conduct ultrasound. However on enquiry, whether prior thereto, there was any bar on MBBS Doctors doing ultrasound or reporting on ultra sound procedure, no reply was forthcoming.
29………we fail to understand what difference it makes, whether the sonologist or imaging specialist i.e. a person who can use and operate anultrasound machine, is a mere MBBS or has a Post Graduate qualification in medicine or has experience of one year or has undergone six months training. The PNDT Act does not owe its enactment to the poor or useless or inaccurate diagnostic reports of ultrasound tests and resultant need to prescribe the qualifications of persons who can operate, use, read and report the outcome of the said diagnostic procedure.
34. We are therefore unable to comprehend the purport of the impugned provisions prescribing the qualification of persons who can use and operate the ultrasound machines and like. It is not as if prior to the coming into force of the PNDT Act the ultrasound machines were in the hands of persons other than „Doctors‟. Even in diagnostic centres where „technicians‟ were operating the ultrasound machines, they were under the control and supervision of „Doctors‟ and it was the „Doctors‟ who were preparing and signing the reports of ultrasound diagnosis/test. It was the „Doctors‟ only who were misusing the same for sex determination, as is evident from reports in the news media of the stray cases detected of violation of the Act.
37.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
42.We may at the outset notice the difference in the stand qua the interpretation of Section 2(p) between the petitioner in WP(C) No. 6968/2011(IRIA) and the petitioners in the other two petitions. While according to petitioner in WP(C) No. 6968/2011, which represents Doctors with postgraduate degrees in radio-diagnosis, it is only the Doctors with postgraduate degrees in radio-diagnosis who are competent to install, use, operate and report on diagnosis with ultrasound machines and have been doing so in the past and the PNDT Act has for the first time entitled even those without postgraduate degrees i.e. mere MBBS to do so, the petitioners in other two petitions who represent the general body of Doctors, not necessarily holding postgraduate degree in radio-diagnosis, controvert. However since we have not been shown and have ourselves not been able to find any bar under the MCI Act or any other law/rule/regulation, to using/operating ultrasound machine save with a postgraduate degree in radio diagnosis, we proceed to interpret Section 2(p) literally.
44. The contention of the petitioners in WP(C)No. 2721/2014 and WP(C) No. 3184/2014 also is that qualification of MBBS or any medical qualification recognized under the MCI Act is enough to operate/use an ultrasound machine. ………If MCI, which is the specialist body in the field of medicine, is of the opinion that persons having MBBS qualification are entitled to practise medicine with use of ultrasound machine, we need look no further…………………………………………….Suffice it is to state that literally, Section 2(p) enables a person who possesses any one of the medical qualification recognised by MCI to be a sonologist or imaging specialist
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 recognised by MCI (Final Interpretation :Every MBBS is a sonologist and six months training is not required)
………………………(vi) 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.(Final Interpretation:Every MBBS is a sonologist.Six months training is optional)
Rule 3(3)(1)(b) of PNDT Rule is ultra vires – non-pelvic ultrasonologists out of act with riders. Delhi high court: A victory for IMA ( Full Judgement Attached) In a landmark judgement W.P.(C) 2721/2014: INDIAN MEDICAL ASSOCIATION vs UNION OF INDIA, IMA has been able to get a relief for the doctors in the country. The six month training rules are out and non-pelvic ultrasonologists are out of PCPNDT act with some riders. The excerpts of the judgment “ 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 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; (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 W.P.(C) Nos.6968/2011, 2721/2014 & 3184/2014 Page 82 of 83 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; (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 W.P.(C) Nos.6968/2011, 2721/2014 & 3184/2014 Page 83 of 83 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 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.” Note 2 (p) “sonologist or imaging specialist” means a person who possesses any one of the medical qualifications recognized under the Indian Medical Council Act, 1956 or who possesses a postgraduate qualification in ultrasonography or imaging techniques or radiology; 2014 amending Rule 3(3)(1)(b) of the PNDT Rules as well as the amended Rule. The amended Rule 3(3)(1)(b) is as under:- 3.3.(1) Any person having adequate space and being or employing— (a) ….. (b) a Sonologist, Imaging Specialist, Radiologist or Registered Medical Practitioner having Post Graduate degree or diploma or six months training duly imparted in the manner prescribed in the “the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) (Six Months Training) Rules, 2014; (c) Dr S S Aggarwal and Dr K K Aggarwal