Facts
- There was a one woman who lived in the government’s institute as “she has the mental capacity of a nine year old child and she does not have any support by her family” due to this reason she has to depend upon the state for her care.
- While living in the government institution that woman was raped and thereafter became pregnant.
- Discovery of the pregnancy of woman was done by the institution staff during the time of “9 weeks gestation period.”
- On finding out the pregnancy, the “Chandigarh Government” filed a case with the police station and forms a medical board to check the mental status of the woman.
- The medical board based opinion is that the woman is suffering from the “intellectual disability”. The second government institution also said that it should terminate the pregnancy of the woman.
- After evaluation of these medical reports “the government decided to file a petition to the High Court of Punjab and Haryana for the termination of the pregnancy of the woman”.
Judgment by High Court
- The court establishes a separate body of experts in medicine and judges to inquire on the above mentioned facts for giving the assistance to the court in deciding a decision.
- After the period of sometime the body of experts is of the opinion that the circumstances of the victim were such that she did not understand how she would live with herself and her child in the future.
- But, then also the woman wanted to proceed further with her pregnancy.
- After recommendation of medical experts, the High Court came to the conclusion that there must be the termination of the gestation.
- “The woman/appellant approaches the Supreme Court for challenging the decision of the High Court.”
Facts given during the appeal in SC
- “During the time of appeal the woman was 19 weeks into pregnancy and the statutory limit in India is only permitted of abortion up to 20 weeks gestation period under Section 3 of the Medical Termination of Pregnancy Act, 1971.”
Issues
- Whether the High Court granted permission to put an end to pregnancy of the woman without her consent?
- If the woman is not able to give her consent what measures or standards the court should apply to exercise its power?
Judgment by the Supreme Court
- The court investigated Section 3 highlights the value of the consent of woman in regard to termination of the pregnancy as well as “Right to Liberty” given under “Constitution of India.”
- The “involuntarily termination of the pregnancy would violate the appellant’s right to liberty and reproductive rights.”
- “The court linked a woman’s reproductive rights to her Right to Life and Liberty under Article 21 of the Constitution.”
- The court also stated that “reproductive rights are the part of the woman’s liberty rights and such rights come under Right to Privacy, Dignity and Bodily Integrity and thus it must be respected.”
- It was also notable that the body of experts found that appellant was not enough to do care for her child on her own and thus she needed the social assistance and aid by the society.
- But the court is also of the opinion that “the appellant had enough capacity to give the consent as she was neither minor not did her intellectual disability warrant her consent to be replaced by the state’s decision.”
- It was noted by the court that MTP act respects the person with the intellectual disability and those who are above the age of majority. According to this act the guardian can also make a decision on the behalf of a person who is suffering from the mental illness but not on the behalf of a person who is of the intellectual disability.
- The court stated that the assent of the woman is mandatory under the MTP act, without the consent of the woman it would lead to “an irrational restriction and inconsistent behavior on the reproductive rights of the victim”
- On account of the above findings the court decided that the appellant consent is obligatory for putting an end to the pregnancy and termination cannot happen without a woman’s consent.
- “The Supreme Court did not accept the decision of the prior Court in regard of termination. In the light of the Expert Body’s findings, the court applied the best interest test, since delay in intellectual development was not same as the mental incapacity. The court further determined that the High Court decision granting termination was not in appellant’s best interest. The court reasoned that the forced termination of the pregnancy would be high risk since the pregnancy was in its 19th week and this could create high emotional stress for the appellant because she had not consented to the procedure. Therefore the court issued a stay in the lower court judgment effectively denying the termination.”
International Instrument used by the court in the Present Case
- On the essence and the ambit of a woman right to produce the court said that the woman had full authority on her own body and she had a full “right of abortion.”
- The court make reference to the “Right to Equality’’ as outlined in the “United Nations Declaration”for supporting personal autonomy in regard of intellectual disability and the MTP Act.
- It was furthermore held by the court that the “India is also the party to the convention on the rights of persons with disabilities was obligated to respect the right therein.”
Approach of foreign countries to deal with Abortion
- Many countries like Australia, Belgium, South Africa, Canada, China ,Albania, United Kingdom Nepal, Israel, United States, Netherlands, Denmark,Croatia,etc. does not have any time limit and in there abortion laws, further these country considers woman’s physical and mental health and seeks the doctor’s opinion In deciding whether and MTP can be performed after 20 weeks period.
Value of Suchita Srivastava case in Present Scenario
- There is urgent need to make amendment in the existing MTP Act to raise the limit from 20th week to 24th week of gestation in exceptional cases with strict supervision and monitoring to avoid any misuse in future.
- MTP Act, 1971 gives permission for abortion up to 20 weeks of pregnancy only. But more than half of dozen of the cases in the recent past move to Supreme Court for seeking permission for the abortion beyond the given deadline
- We should be proactive in approach rather than reactive. It is right time to expedite the proposed amendments in the MTP Act.
- There is also a need to define the Constitution of Medical Board and their roles on specific issue related to mental and physical health of the woman in question. Plight of many rape survivors, victims of incest who become pregnant but diagnosis come in notice when gestation crossed permissible limit of 20th week can be addressed in larger public interest.
- There is a need for political will to pass the pending amendment in the light of cases come before the Supreme Court.
Conclusion of the Present Case
- Persons who are suffering from mental illness must be separated according to their mental retardation level on the time they approach for medical termination of pregnancy. It must be investigated if they are able to give consent under law and then shall proceed with the termination. “The Supreme Court has crashed the judgment of the prior court in the Suchita Srivastava case”
- Also have thrown a valuable right on the reproductive rights of the people who are mentally ill and shown a ray of faith and hope for the person who are suffering with the disability as well as it also includes the persons who are suffering from the mental retardation to have a child of their own.
Author: Shubham Sharma,
Delhi Metropolitan Education, IP University 2nd Yr.
