Justice Kohli dictated that her judicial conscience did not permit her to allow the termination of the pregnancy of the petitioner, while Justice Nagarathna asserted that the petitioner was unequivocal in her submission that she did not wish to carry the pregnancy and thus her decision should be respected.
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THE drama over the application of a 26-week pregnant woman for medical termination of her pregnancy refuses to die down.
In the latest turn of events, the division Bench of the Supreme Court comprising Justices Hima Kohli and B.V. Nagarathna, which is seized of the matter, has differed over allowing the termination of the pregnancy.
Justice Kohli dictated that her judicial conscience did not permit her to allow the termination of the pregnancy of the petitioner, while Justice Nagarathna asserted that the petitioner was unequivocal in her submission that she did not wish to carry the pregnancy and thus her decision should be respected.
Justice Nagarathna also added that the petitioner already has two children, one being only a year old.
The matter will now be placed before the Chief Justice of India for forming an appropriate Bench.
Today, the Bench initially asked the petitioner whether she could carry the pregnancy for two more weeks so that the child born could be taken over by the State.
The petitioner said she simply could not continue with the pregnancy. Her husband, however, submitted that he would have no issue with the wife carrying the pregnancy for two more weeks. The Bench observed it was the petitioner's submission that matters, since she is carrying the pregnancy.
Justice Kohli took strong exception to the email sent by one the All India Institute of Medical Sciences (AIIMS), New Delhi doctors, who was on the medical board on whose opinion the Bench had on October 9 permitted the petitioner to terminate her pregnancy. In the mail, the doctor asserts that if the pregnancy was sought to be terminated at this stage, the child may be born alive, although with severe physical or mental disability. Justice Kohli opined that this fact ought to have been disclosed to the Bench on an earlier occasion.
Additional Solicitor General (ASG) Aishwarya Bhati opposed the termination of the pregnancy. She argued that the petitioner's right to privacy and bodily autonomy cannot go beyond the provisions of the Medical Termination of Pregnancy (MTP) Act, 1971. She added that the baby had a viable chance of being born and that the State would take the responsibility of the child.
On October 5, a division Bench of the Supreme Court comprising Justices Hima Kohli and B.V. Nagarathna heard the petition filed by the woman under Article 32 of the Constitution.
It directed the constitution of a medical board by AIIMS, New Delhi to assess the medical condition of the petitioner.
It directed the woman to remain present before the medical board on October 6 and listed the matter for further consideration on October 9.
On October 9, the Bench passed an Order permitting the woman to terminate her pregnancy. The Bench directed the petitioner, a mother of two children, to visit the Obstetrics and Gynaecology Department of AIIMS, New Delhi on October 10, to undergo the procedure of termination of pregnancy.
The Bench observed that it recognises the right of a woman over her body and the fact that if an unwarranted pregnancy results in a child being brought into the world, a large part of the responsibility of rearing such a child will fall on the shoulder of the petitioner, for which she does not consider herself fit at this point.
The Bench said it would release its detailed reasons for allowing the petition later.
However, yesterday the Union government approached the CJI, seeking a recall of the Order citing that it was recommended by the court despite a medical board saying that the baby had a viable chance of being born.
The CJI-led Bench asked ASG Bhati to file a formal application seeking recall of the court's Order and that he would constitute a Bench which passed the Order to consider the recall application.
The CJI also asked Bhati to keep the termination of pregnancy on hold for now.
Section 3(2)(a) of the Medical Termination of Pregnancy (MTP) Act, 1971 permits the termination of pregnancy where the length of pregnancy does not exceed twenty weeks.
Clause (b) of this subsection permits termination where the length of pregnancy exceeds twenty weeks but does not exceed twenty-four weeks for such categories of women "as may be prescribed by Rules made under this Act".
However, an opinion must be formed by not less than two registered medical practitioners that inter alia "the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health".
The Rules framed under the MTP Act, 1971 for the purpose of "categories of women" as mentioned in Section 3(2)(b) includes categories of women such as divorcees, widows, minors, disabled and mentally ill women and survivors of sexual assault or rape.
Initially, the Rules excluded unmarried women from its purview. However, the Supreme Court in X versus Principal Secretary Health, Delhi, interpreted Rule 3B to include 'unmarried women' as well.