A division Bench of the Supreme Court allowed a rape victim to terminate her pregnancy after the medical board deemed she was fit to undergo the procedure and reprimanded the Gujarat High Court for adjourning the matter by 12 days.
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ON Monday, the Supreme Court allowed the termination of a 27-week pregnancy of a 25 year-old rape victim.
This comes soon after a Gujarat High Court Order that had dithered over the plea for termination.
A division Bench of the Supreme Court comprising Justices B.V. Nagarathna and Ujjal Bhuyan expressed its displeasure over another Order passed by the high court on Saturday, while the matter was still pending before the Supreme Court.
In a special sitting on Saturday, the Supreme Court Bench had castigated the Gujarat High Court for adjourning the case of medical termination of pregnancy by 12 days.
After the victim had approached the high court on August 8, the court had formed a medical board to examine her as per procedure and adjourned the matter till August 23.
The court had observed that a sense of urgency should have been displayed in dealing with the matter as time is a crucial factor in such cases.
Advocate Shashank Singh, appearing for the victim, had informed the court that the medical board in Bharuch, had allowed the termination of the pregnancy.
Consequently, the Supreme Court had sought a fresh report from the medical board. It also sought the Order of the high court to peruse the reasons for the rejection of the plea.
Today, the Bench pursued the latest medical report of the victim from the medical board, Bharuch.
The medical report stated that the victim is clinically fit for the procedure of termination of pregnancy and that the procedure will not adversely affect her child-bearing capacity and general health in the future.
The Bench was apprised of the high court’s Order of August 19 which is referred to as: “On note for speaking to minutes of Order dated 17/08/2023…”
The subsequent Order seeks to highlight an error in transcribing its previous Order, dated August 17, and to explain the adjournments granted by the high court.
Expressing its disappointment, the Bench “did not appreciate” the subsequent Order of the high court on account of the high court’s alleged attempt to “circumvent” the Supreme Court.
Justice Nagarathna termed it as a “counter-blast” to the Order of the Supreme Court, and expressed in dismay: “What is happening in the Gujarat High Court?”
In a bid to clear the confusion regarding the grounds for passing the subsequent Order, the Solicitor General of India Tushar Mehta submitted that the Order was in the nature of a “clarification”.
On the possibility of the foetus surviving after the termination procedure, Mehta referred to a “beautiful” event wherein in the case of a seven-month pregnancy due to a consensual sexual relationship, on counselling, the woman had agreed to carry the pregnancy to term.
Mehta stated that the chance of the foetus surviving was 80 percent. The State took responsibility for the child after the child was born, he added.
To this, Justice Bhuyan pointed out that the two situations are incomparable since the present case is of an offence of rape and requiring a rape victim to continue with the pregnancy is a “perpetuation” of the trauma caused by the rape.
The Order
The Bench noted the medical report, as referred to by the high court, had opined that there were no abnormalities in the foetus and the pregnancy could be terminated if the court permits, after taking the consent of the victim and explaining the potential effects on her health.
In view of the medical report, the Bench observed that the high court’s Order is contradictory to the medical report.
The Order observed that in the Indian society, pregnancy outside of marriage, particularly after sexual assault or abuse, is injurious and causes stress and trauma to the victim.
Sexual assault that amounts to pregnancy compounds the injury, the Bench noted.
In upholding the right of a woman to have a reproductive choice as an inseparable part of her personal liberty under Article 21 of the Constitution, the Bench referred to the cases such as Suchitra Srivastava and Another versus Chandigarh Administration (2009), Murugan Nayakkar versus Union of India (2017) and X versus Principal Secretary, Health and Family Welfare Department, Govt of NCT Delhi and Another (2022).
After perusing the medical report as well as the plea of the victim, the Bench permitted the pregnancy to be terminated.
The Bench directed the victim to be present at the concerned hospital today or by 9 a.m. tomorrow so that the procedure of termination could be carried out tomorrow.
The Bench directed the hospital to provide facilities such as incubation if the foetus is alive after the termination of the pregnancy procedure. Further, if the foetus survives, the State has been directed to ensure that the child is adopted by following the necessary procedures.
Background
On becoming aware of the pregnancy on August 4, the victim approached the high court seeking to terminate the pregnancy on August 7.
On August 8, the high court formed a medical board to examine the feasibility of terminating the pregnancy.
Notably, when she had approached the high court, she was already 26 weeks pregnant.
On August 11, the high court adjourned the matter to August 23.
However, following the listing of the matter on August 17, the high court rejected the petition without giving speaking orders.
It is in these circumstances that the victim had approached the Supreme Court.
