On August 19, a Saturday, the Supreme Court held a special sitting to urgently hear the plea for termination of pregnancy of an Adivasi woman who is a rape survivor. The term of the pregnancy of the said survivor was more than 26 weeks. The woman had approached the Supreme Court after the Gujarat High Court refused her relief, and had set the next hearing to be held on August 23. Notably, 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.
At 10.30 a.m., the Supreme Court bench comprising Justices BV Nagarathna and Ujjal Bhuyan held the special sitting and expressed dismay at the nonchalant approach of the Gujarat High Court in dealing with said case. The petitioner’s lawyer Advocate Shashank Singh submitted to the court that the medical board had opined in favour of termination of pregnancy; however, the High Court did not entertain the plea for abortion.
The counsel further informed the bench that the writ petition was filed in the High Court on August 7, and the Court took the matter on August 8 on which date a direction to constitute a medical board was passed to ascertain the status of pregnancy. On August 10, the report of the board was submitted. On August 11, the Court took the report on record and posted the matter to August 23.
The bench expressed surprise at the High Court posting the matter after 12 days for hearing. “How can the court stand it over to August 23? How many valuable days would have been lost by then!“, a dismayed Justice Nagarathna said, as reported by LiveLaw. It is essential to note that the said case was being heard by Justice Samir Dave, whose transfer from the Gujarat High Court has been recommended by the Supreme Court.
The counsel further submitted that the case was however listed before the High Court on August 17 on which date the petition was dismissed. However, the order of dismissal has not been uploaded yet. In this backdrop, the Court directed the Secretary General of the Supreme Court to ascertain from the Gujarat High Court Registry if the order has been uploaded.
“We will wait for order. How can we proceed without the order?“, Justice Nagarathna expressed anguish. “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 added, as reported by LiveLaw.
As per a report of the LiveLaw, the bench recorded its dissatisfaction with the Gujarat High Court by observing the following in its order: “Strangely, the High Court posted the case 12 days thereafter on August 23, losing sight of the fact that every day’s delay was crucial and of great significance having regard to the facts and circumstances of the case. In the instant case, when the petitioner had approached the Court, she was already 26 weeks pregnant. Therefore, we find that valuable time has been lost between August 11, when the report was placed before the High Court and the order stating that the matter will stand over to August 23”.
The Supreme Court bench issued directions to conduct a fresh medical examination of the petitioner and directed her to appear before the hospital for being examined once again today only. The said medical report is then to be submitted before the Supreme Court by Sunday, and the bench will hear the matter again on Monday as the first item.
It is essential to note that in a separate case, on June 7, while hearing a termination of pregnancy petition moved by the father of a minor rape survivor, Justice Samir Dave had quoted from the Manusmriti. While indicating that he might not allow the petition if both the girl and foetus were healthy, Justice Dave had said ‘It was once normal for girls to marry at the age of 14-15, and deliver a child before they turned 17’. He had also recommended that the petitioner read it, and ask her mother/grandparents about their time.
Brief background of the case:
The Petitioner in the matter is an Adivasi woman from a remote village in Gujarat and works as a domestic help. As per the allegations raised by her, she was subjected to rape under the false pretext of marriage.
On August 7, the petitioner moved the Gujarat High Court and sought for medical termination of pregnancy. Accordingly, the High Court issued an order dated 08.08.2023 directing the medical board to conduct an examination of the petitioner and produce the report at the court by August 11.
On August 11, the medical board placed its report before Justice Samir J. Dave of Gujarat High Court, as per which the petitioner was deemed clinically fit for the termination of pregnancy procedure. However, during the hearing on August 17, the High Court gave the petitioner the option to have the child and keep the child’s custody or surrender it to the State upon delivery. The Petitioner was not inclined to accept either of the options and wished to pursue her prayer for termination of the pregnancy. Notably, the same was rejected by the Single Judge at the stage of Admission and it was communicated that the Order would be out soon. However, the order has not been released yet. In view of the urgency, the matter was brought to the Supreme Court.
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