2016 (8) TMI 1607 - HC - Indian Laws

Striking down Section 2(p) of Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, Act - vires of Rule 3(3)(1)(b) of the PNDT Act - HELD THAT - It is accepted that the law would be finally laid down by the Hon'ble Supreme Court and thus there is no point in keeping this petition pending and whatever the declaration of law by the Hon'ble Supreme Court would be equally applied. The only question is as to what would happen till the Hon'ble Supreme Court examines the issue. In this behalf, if the Hon'ble Supreme Court had stayed or would stay the operation of the Judgment, then only could those provisions struck down again come in force. It is trite to say that once a High Court has struck down the provisions of the Central Act, it cannot be said that it would be selectively applied in other States. Thus, there is no question of applicability of provisions struck down by the High Court as of now until and unless the Hon'ble Supreme Court upsets the Judgment or stays the operation of the Judgment. Petition disposed off.

Summary

Issues:
Interpretation of the Delhi High Court order striking down Section 2(p) of the PNDT Act and Rule 3(3)(1)(b) of the PNDT Act.

Analysis:
The High Court discussed the Delhi High Court order dated 17.02.2016, which struck down Section 2(p) of the Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, and consequently, Rule 3(3)(1)(b) of the PNDT Act. The Delhi High Court declared that the definition of a Sonologist or Imaging Specialist under Section 2(p) was flawed as it included qualifications not recognized by the Medical Council of India (MCI). The High Court reiterated the directions given by the Delhi High Court, emphasizing the registration requirement for places with ultrasound machines capable of determining the sex of the fetus. The High Court also discussed exemptions from compliance with the Act and Rules under certain conditions, highlighting the requirement of a "silent observer" or other prescribed equipment. Additionally, the High Court addressed the ultra vires nature of Rule 3(3)(1)(b) of the PNDT Rules post-amendment in 2014.

The High Court acknowledged that the final interpretation of the law would be determined by the Supreme Court, and until then, the provisions struck down by the Delhi High Court would not be applicable. The High Court emphasized that if the Supreme Court stayed the operation of the judgment, the provisions could come into force again. It clarified that once a High Court invalidates provisions of a Central Act, such provisions cannot be selectively applied in other states unless the Supreme Court overturns the judgment or stays its operation. Therefore, the High Court concluded the writ petitions with these observations, indicating that the parties would bear their own costs, and closed the connected miscellaneous petition.