23, Aug 2023 | Tanya Arora
“A changed social context demands a readjustment of our laws. Law must not remain static and its interpretation should keep in mind the changing social context and advance the cause of social justice”
-Justice Chandrachud, Supreme Court of India
“To give birth to an unwanted child or not” was the question that was posed before the Supreme Court in a matter of the abortion of pregnancy of a rape survivor. On August 21, the Supreme Court bench of Justices BV Nagarathna and Ujjal Bhuyan allowed a plea for termination of pregnancy by a 25-year-old rape survivor, who had been refused relief by the Gujarat High Court. Noting that such pregnancy affected the physical and mental health of the woman, the court set aside the order of the Gujarat High Court dismissing the rape survivor’s petition for a medical termination of pregnancy.
Through the said judgment, the Supreme Court reiterated that a woman alone has the right over her body and is the ultimate decision-maker on the question of whether she wants to undergo an abortion. The court also observed that forcing a woman to have a child conceived as a result of rape is against the constitutional philosophy set in India.
What was the case about?
An Adivasi woman in a remote village in Gujarat was the petitioner in the said case. She was allegedly raped under the false pretext of marriage. At 26 weeks, she filed a writ petition in the Gujarat High Court for permission to terminate her pregnancy under Article 226 of the Indian Constitution. She had to move the court as under Section 3 (2B) of the Medical Termination of Pregnancy Act, 1971 termination of pregnancies which were beyond 24 weeks could be permitted only if the said termination were necessitated by the diagnosis of “substantial foetal abnormalities” by a Medical Board.
Proceedings of the case in the Gujarat High Court:
On August 10, the Medical Board submitted their report, which were taken on record by the court on August 23. On the same day, Justice Samir J. Dave had adjourned the matter till August 17 without any reason being specified. On August 17, the High Court refused to grant any relief despite a favorable opinion of a medical board of finding the petitioner to be clinically fit for the termination procedure and rejected the plea.
The order can be read here:
Proceedings in the Supreme Court
On August 19, a special sitting of the bench of the Supreme Court was held to listen to the urgent plea moved by the petitioner for the termination of the pregnancy. The bench had sharply criticised the single judge handling this case and expressed dismay at the nonchalant approach of the Gujarat High Court in dealing with said case. “In such cases, there should be a sense of urgency. Not a lackadaisical attitude treating it as a normal matter! We are sorry to make these remarks”, Justice Nagarathna had added.
On August 21, the bench started the hearing by observing that the petitioner is now nearing the third trimester of her pregnancy, having carried the foetus for 27 weeks and three days. On the rejection of the plea by the Gujarat HC even after the medical board had termed her medically fit to undergo abortion, Justice Bhuyan had stated that the view taken by the high court is against constitutional philosophy, “How can you perpetuate unjust conditions and force the rape survivor to undergo pregnancy?,” as reported by LiveLaw.
During the hearing, Solicitor-General for India Tushar Mehta recalled another instance in which a woman initially insisting on terminating her pregnancy was persuaded to deliver the baby, which was later given in adoption. He stated “We recently encountered this case where a girl was pregnant. The situation was different because the pregnancy arose out of consensual sex. This is more heinous. A team of AIIMS doctors said that pregnancy would be permissible, but the chances of the seven-month-old foetus not surviving would be 80 percent. In this case, the court requested my colleague, Ms Aishwarya Bhati, to meet the pregnant girl and counsel her to carry the baby to term, while assuring her that the State would take responsibility of the child. The girl agreed and was looked after by the government which ensured complete anonymity. She delivered a baby, which was immediately given in adoption by this court exercising its Article 142 jurisdiction to a very good family. This is a beautiful event that has happened before, in this court.”
Responding to the aforementioned argument of the SG, Justice Bhuyan pointed to the stark difference between the facts of the two cases. He stated, “That was not a case of rape, there is a great difference between the two situations.” He further that rape in itself is a traumatic event to begin with, asking a rape survivor to continue with pregnancy is also a perpetuation of the trauma.
Senior Advocate Sanjay Parikh, appearing for the petitioner, also interjected the line of argument and stated that the survivor had not agreed to carry the baby to term.
Solicitor General Mehta had to then clarify his statement saying, “I am not comparing the two situations. This was a good thing that happened. That is why I shared it. I understand that in this case, it is a forced pregnancy and not a voluntary one.”
Justice Nagarathna provided that in the case the foetus survives the process of abortion, the child shall become a responsibility of the state. She said, “The foetus also has an Article 21 right to life. If this foetus survives, let the State give an incubation facility and it will become a child of the State. We are thankful for that. We would have anyway said it in our order,” as reported by LiveLaw.
Responding to this, the solicitor general had assured the bench that all necessary medical facilities would be made available to the rape survivor by the government. “I undertake this personally. If the foetus survives, the State will take the responsibility of providing not only an incubator but also whatever else is required in the paediatric ward of the hospital,” as reported by LiveLaw.
Noting the solicitor-general’s assurance, Justice Bhuyan said, “You can take care of these things subsequently. In the meanwhile, let her undergo the process.”
It is also essential to note that during the hearing, it was brought to the notice of the Supreme Court that pursuant to the Supreme Court hearing the matter on August 19 at 10.30 am and passing its order, a subsequent order had been passed by the same single judge of the Gujarat High Court. As can be understood from the suo moto order passed by the HC, the judge has seemingly attempted to clarify that the order of adjournment was granted in order to enable the counsel to get instructions from the rape survivor on whether she was willing to carry the foetus to term and hand it over to the State’s facility.
As per the LiveLaw report, the Supreme Court bench had taken great exception to this seemingly ‘clarificatory’ order passed by the Gujarat High Court. Justice Nagarathna did not mince words in expressing her dismay at this attempt to counterblast the order of the Supreme Court and said:
“We do not appreciate the high court’s counterblast to the Supreme Court’s orders. What is happening in the High Court of Gujarat? Do judges reply like this to a superior court’s order? We do not appreciate this. These kinds of attempts are being made by high court judges to circumvent something we have said, like this. There is no need for any judge of the high court to justify its order.”
Justice Ujjal Bhuyan also expressed his shock at the passing of the said order, enquiring upon the requirement for the judge to pass the said order. Judges do not have to justify their orders by passing a subsequent order, Justice Bhuyan said. He also observed that the high court could not have imposed an unjust condition on a rape survivor, forcing her to bear the child. He said, “The view taken, I’m sorry to say, is against constitutional philosophy. How can you perpetuate unjust conditions and force the rape survivor to undergo pregnancy?” as per the LiveLaw report.
Advocate Parikh had also informed told the bench that the same single judge, in another case related to the pregnancy of a minor rape survivor, had invoked Manusmriti.
It is essential to note that SG Tushar Mehta had requested the bench to not make any adverse comments against the single judge in its order, saying that the suo moto order was passed in a bona fide manner. “Please ignore what happened. Kindly do not [make adverse comments] because it really discourages high court judges. These have a demoralising effect. He is otherwise a very good judge,” the SG had stated as per the report of LiveLaw.
The suo-moto order of the court can be read here:
Observations made by the Supreme Court in the order:
In the order delivered by the Supreme Court, significant observations regarding the autonomy of the women to take decisions related to her body, the stress and trauma caused to women by pregnancies outside marriage, and trauma of rape and the pregnancies resulting from rape.
Pregnancy outside marriage, particularly after sexual assault is injurious to mental health of woman: Supreme Court
In its order, the Supreme Court highlighted the patriarchal mind-set prevalent in the India societies that taboo pregnancies outside marriages. The bench noted that such unwanted pregnancies, especial when are a result of sexual assault, can lead to more stress and trauma. In the order, the bench observed that while pregnancy in a marriage is an occasion for joy, pregnancy outside marriage, particularly after sexual assault, is injurious to the mental health of a woman. The court stated in the order “…To give birth to an unwanted child or not is the question posed by the appellant in this appeal, being unsuccessful before the Gujarat High Court. In Indian society, within the institution of marriage, pregnancy is a reason for joy and celebration, and for great expectation, not only for the couple but for their families and friends. By contrast, pregnancy outside marriage in most cases is injurious, particularly after a sexual assault or abuse, and is a cause for stress and trauma, affecting both the physical and mental health of the pregnant woman – the victim. Sexual assault or sexual abuse of a woman is itself distressing, and sexual abuse resulting in pregnancy, compounds the injury. This is because such a pregnancy is not a voluntary or a mindful pregnancy.” (Para 13)
Reproductive decisions of woman not to be interfered by State: Supreme Court
The bench also emphasized the importance of every woman’s right to make autonomous reproductive decisions free from State interference in addition to highlighting how the trauma of rape might be perpetuated if a survivor is forced to give birth to a child conceived as a result of the sexual assault. The court noted that the deprivation of access to reproductive healthcare, apart from being injurious to the emotional and physical well-being of the woman, also injured the dignity of the woman. The order stated:
“In the context of abortion, the right of dignity entails recognising the competence and authority of every woman to take reproductive decisions, including the decision to terminate the pregnancy. Although human dignity inheres in every individual, it is susceptible to violation by external conditions and treatment imposed by the State. The right of every woman to make reproductive choices without undue interference from the state is central to the idea of human dignity.” (Para 18)
In view of this and after taking note of the medical report which declared her fit to undergo the termination procedure, the court allowed her plea –
“We permit the appellant to terminate her pregnancy. We direct her to be present in the hospital today or 9 AM tomorrow, as she deems fit, so that the procedure for termination of pregnancy can be carried out.” (Para 20)
The order also provides the steps to be followed in case the foetus survives the procedure. The order states that subsequent to the medical procedure, in the event that the foetus is found to be alive, the hospital has been directed by the court to provide all necessary facilities including incubation to ensure the survival of the foetus. The State shall then take steps to ensure that the child is adopted in accordance with law, the bench further directed.
“Subsequently to the medical procedure to be carried out either today or tomorrow, in the event, the foetus is found to be alive, the hospital shall give all necessary medical assistance including incubation either in that hospital or any other hospital where incubation facility is available in order to ensure that the foetus survives. Further, in case the foetus survives, then State shall take steps for ensuring that the child could be adopted in accordance with law.” (Para 21)
With respect to the manner in which the August 19 suo-moto order was passed by the single judge of the Gujarat High Court, the Supreme Court bench refrained from making any adverse comment in its order and stated, “We restrain ourselves from saying anything on the order passed by the single judge of the high court on August 19 pursuant to the order passed by us on the said date though we have to say that it was highly improper.“ (Para 11)
Advocate Parikh had also made a request for allowing the preservation of tissues of the foetus for use as DNA evidence in the rape case trial. The bench in its order stated “We direct the concerned medical experts to have regard to the feasibility of such a procedure being done, in the event of the foetus being alive or in the event the foetus not being alive or is still born and accordingly take steps as sought for by the appellant herein. It is needless to observe that in the event tissues are drawn for the purpose of DNA test the same shall be handed over to the investigating agency by the concerned hospital” (Para 22-23)
Cases relied upon by the Supreme Court in its order:
While delivering the judgment in the said case, the bench of Justices Nagarathna and Bhuyan relied upon a few landmark judgments delivered by the Supreme Court which dealt with the issue of reproductive autonomy and access to reproductive healthcare. Passages excerpted from them were used were also present in the order. The said judgements are as follows:
- In the matter of Suchitra Srivastava (2009), the right of a woman to have reproductive choices was held to be an insegregable part of her personal liberty under Article 21 of the Constitution, recognising her ‘sacrosanct’ right to her bodily integrity.
- In the matter of Murugan Nayakkar (2017), the Supreme Court allowed the plea of a minor rape survivor and allowed her pregnancy to be terminated in terms of the opinion of a medical board.
- In the matter of Sarmishtha Chakraborty (2018), the Supreme Court had allowed a woman to abort her over 20-week-old foetus with severe abnormalities. Notably, this decision had been delivered prior to the 2021 amendment to the Medical Termination of Pregnancy Act, 1971 which increased the upper limit of the legal window for an abortion from 20 to 24 weeks.
- In the year 2022, in the matter of X vs The Principal Secretary, a three-judge bench led by Justice Chandrachud (as he was then) had allowed an unmarried woman in a live-in relationship to abort her pregnancy of 24 weeks. The bench had noted that the 2021 amendment used the term ‘partner’ instead of ‘husband’ in the explanation to Section 3 of the act, implying that the marital status of the pregnant woman should not matter. The bench had also observed that women did not need to seek her family’s consent, nor could doctors impose extra-legal conditions, the court said. The only cases in which a woman would require her guardian’s consent is if she is a minor or suffers from mental illness.
The complete order of the court can be read here:
Supreme Court’s recent judgment on abortion an important reminder on a woman’s bodily autonomy, individuality and dignity
Time and again, Supreme Court has served reminders to the state and the society in relation to the right of a woman to exercise her right to bodily autonomy, liberty and dignity. The current judgment of the Supreme Court upholds a woman’s sole right to her body and decision making, especially in the case of pregnancy as a result of sexual assault.
Through this judgment, the bench has asserted that the matters related to a woman’s body do not account for any interference by the State. The right to personal autonomy underlies the Fundamental Rights and is rooted in the dignity of each individual. It includes the right to make decisions about issues innate to our personality privately without the judgment of the state and society.
Thus, the said judgment of the Supreme Court, along with the cases relied upon, are critical as it not only upholds the values promoted by our Indian Constitution but also finds affirmation un the international human right law, which takes the centre-stage of women and girls’ autonomy to make their own decisions vis-à-vis their bodies.