Saturday, 26 November 2016

Whether provision of central Act struck down by high court of one state can be selectively applied in other states?

In view of the aforesaid position, 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.
4. 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.
IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated: 03.08.2016

Coram:

 Mr.SANJAY KISHAN KAUL, CHIEF JUSTICE
 Mr.Justice R.MAHADEVAN

W.P.Nos.39022 and 36735 of 2015

 Dr.T.Rajakumari                              
V
Government of Tamil Nadu,
Dated:    03.08.2016.
Citation:AIR 2016 Madras 177


               
We have heard the learned counsel for the parties.
2. The accepted undisputed position is that the Hon'ble Supreme Court has not stayed the operation of the Delhi High Court order dated 17.02.2016 striking down Section 2(p) of Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, Act (hereinafter called ''PNDT Act'').  Consequently, Rule 3(3)(1)(b) of the PNDT Act have also been struck down as ultra vires the Act.  We reproduce the operative portion of the order as under:
''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 81 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 82 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. No costs.'' 

3.In view of the aforesaid position, 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.
4. 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.
5. We, thus, dispose of the writ petitions with the aforesaid observations, leaving the parties to bear their own costs.  Consequently, connected miscellaneous petition is closed.

  (S.K.K., CJ.)      (R.M.D., J.)                       03.08.2016

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