“We do not appreciate this. If the Union of India starts doing this, private parties will also start doing this. We are an integral court. Every Bench of the Supreme Court is the Supreme Court,” Justice Nagarathna told Additional Solicitor General Aishwarya Bhati.
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ON Wednesday, a Supreme Court Bench comprising Justices Hima Kohli and B.V. Nagarathna came down heavily on the Union government for orally mentioning before the Chief Justice of India (CJI) Dr D.Y. Chandrachud that an Order passed by the Bench allowing termination of pregnancy which has crossed over 24 weeks should be recalled.
Justice Nagarathna, mincing no words, told the Additional Solicitor General (ASG) Aishwarya Bhati that she did not appreciate at all that the Union of India sought to create an intra-court appeal in the Supreme Court.
“We do not appreciate this. If the Union of India starts doing this, private parties will also start doing this. We are an integral court. Every Bench of the Supreme Court is the Supreme Court,” Justice Nagarathna told ASG Bhati.
Justice Nagarathna also expressed her concern that if such a precedent was set there would be a breakdown of the system of the court.
ASG Bhati sought to explain that she was constrained to mention the matter before the CJI as the Bench of Justices Kohli and Nagarathna was not sitting at 4 p.m. yesterday.
Justice Kohli was quick to retort that the Union could have moved an application for the constitution of the special Bench and the matter would have been considered on priority yesterday itself.
The Bench also expressed its displeasure at the All India Institute of Medical Sciences (AIIMS) doctor for not being candid with the court in their first report where they did not mention facts 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.
The Bench will hear the matter again at 2 p.m. today after having an affidavit from the petitioner that she does not have to continue with the pregnancy at all.
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.
The woman is seeking termination of her pregnancy, which has by now crossed 24 weeks, on the ground that she is suffering from ‘lactational amenorrhea’ and from depression due to which she is unwilling to continue with the pregnancy.
The Bench admonished the woman for seeking to terminate a 24-week-old pregnancy, observing that it was not a case of forced pregnancy but a voluntary conception.
Despite the oral chastisement, the Bench ended up taking a lenient view of the matter and 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.
