The Supreme Court has stayed a Delhi High Court order dated February 17, 2016 setting aside the mandatory six-month training needed for performing ultrasonography and said that the wisdom of the legislature in adopting a policy cannot be substituted by the court while exercising judicial review.
A bench of Chief Justice Dipak Misra and justices A M Khanwilkar and D Y Chandrachud, while staying the operation of the February 17, 2016 Delhi High Court order, said that prima facie the judgement has trenched upon an area of legislative policy.
"The Training Rules 2014 were made by the central government in exercise of the power conferred by Parliament. Prima facie, the rules are neither ultra vires the parent legislation nor do they suffer from manifest arbitrariness," the bench said.
“Prima facie, these provisions indicate that Parliament has conferred upon the Central government rule making authority to specify minimum qualification for persons to be employed at genetic counselling centres, laboratories and clinics. Specification of qualifications, in our view, should be read in a purposive sense which will fulfil the object of the law. Even on a plain and natural construction of the words used by Parliament, specification of qualifications must necessarily comprehend the power to prescribe training. The rationale for this is that the training would sensitize the person concerned to the salutary object and purpose of the legislation which has been enacted by Parliament to deal with a serious social evil and be conscious of the misuse of sex-selection tests. Pre-natal diagnostic procedures are susceptible to grave misuse”, the apex court observed.
“Parliament which has the unquestioned authority and legislative competence to frame the law considered it necessary to empower the Central government to frame rules to govern the qualifications of persons employed in genetic counselling centres, laboratories and clinics. The wisdom of the legislature in adopting the policy cannot be substituted by the court in the exercise of the power of judicial review. Prima facie the judgment of the Delhi High Court has trenched upon an area of legislative policy. Judicial review cannot extend to reappreciating the efficacy of a legislative policy adopted in a law which has been enacted by the competent legislature. Both the Indian Medical Council Act, 1956 and the PCPNDT Act are enacted by Parliament. Parliament has the legislative competence to do so. The Training Rules 2014 were made by the Central Government in exercise of the power conferred by Parliament. Prima facie, the rules are neither ultra vires the parent legislation nor do they suffer from manifest arbitrariness”, the Court further observed.
The top court also observed that the high court order "squarely impinges" its order in Voluntary Health Association of Punjab case of 2016.
Besides the Centre, Indian Radiological and Imaging Association, the association of radiologists in the country, had moved the Apex Court challenging the High Court's decision on the issue.
The High Court had declared the Rule 3(3)(1)(b) framed under the Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act, 1994 as ultra vires. It had also done away with the mandatory six-month training which was earlier required to be able to perform an ultrasound under the ambit of the law.
The PIL, filed by NGO Voluntary Health Association of Punjab, was disposed of in 2016 with the apex court passing a slew of directions to stop female foeticide in the country.