SC criticises Gujarat High Court for its ‘counterblast’ order in abortion case

New Delhi: Observing that pregnancy in cases of sexual assault is a cause of stress and trauma to the victims, the Supreme Court on Monday allowed a rape survivor to undergo medical termination of her over 27-week foetus after noting that she is clinically fit for the procedure which will not adversely affect her child bearing capacity. The top court also rebuked the Gujarat High Court for issuing a “counterblast” after it had already taken up the woman’s appeal.

Under the Medical Termination of Pregnancy (MTP) Act, the upper limit for termination of pregnancy is 24 weeks for married women, special categories including survivors of rape and other vulnerable women such as those differently-abled and minors.

Taking note of the survivor’s medical report, a bench of Justices B V Nagarathna and Ujjal Bhuyan said the Gujarat High Court was not right in rejecting her prayer for MTP.

In a special sitting, the top court had on Saturday expressed displeasure over the Gujarat High Court adjourning the survivor’s plea for medical termination of her pregnancy, and said “valuable time” has been lost during the pendency of the matter.

Later on Saturday, the single bench of the high court rejected the plea for abortion.

Responding to the HC order, the apex court on Monday said, “We do not appreciate the High Court passing an order as a counterblast to SC order. Thank you for bringing it to our notice, but are you supporting? What is happening in High Court of Gujarat ? Do judges retort like this to a superior court order?”

The top court wanted to know what was the need for the high court to pass an order in a matter disposed of by a superior court.

“These kinds of attempts are being made by the high courts to circumvent our order. No court in India can pass an order like this on a Saturday against a superior court order without giving notice to the other side,” the bench said, adding the view taken by the high court is against the constitutional philosophy.

The top court said in Indian society within the institution of marriage, pregnancy is a reason for joy and celebration not only for the couple but also for their family and friends.

“In contrast, pregnancy outside marriage is injurious, particularly in cases of sexual assault or abuse and is a cause of stress and trauma affecting the physical and mental health of pregnant women. Sexual assault of a woman is itself distressing and sexual abuse resulting in pregnancy compounds the injury. This is because such a pregnancy is not voluntary or mindful.

“In view of the above discussion and the medical report, we permit the appellant to terminate her pregnancy. We direct her to be present in hospital tomorrow so that procedure for termination of pregnancy can be carried out,” the bench said.

The apex court said if the foetus is found to be alive, the hospital shall extend all necessary medical assistance, including incubation, to ensure the foetus survives.

If it survives, the State shall take steps to ensure the child is adopted in accordance with the law, it said.

Solicitor General Tushar Mehta, appearing for the Gujarat government, said there may be some confusion on assisting the court and requested the bench not to pass any adverse observations against the HC order.

Senior advocate Sanjay Parikh, appearing for the victim, urged the bench for preservation of tissue drawn from the foetus which may be used as evidence in the trial.

The bench said the court is not a medical expert and can only direct the medical experts concerned to have regard to feasibility of such a procedure being done.

Needless to observe that it (tissue) will be handed over to the investigating agency for the purpose of DNA test by the hospital concerned, the bench said.