Chapter-4
Judicial Dimensions
One of the greatest threats to our
contemporary civilisation is the menace of skewed sex ratio. The 2001 census data and other studies
illustrated the terrible impact of sex selection in India over the last two
decades. The child sex ratio [0-6 years]
declined from 945 girls to 1,000 boys in 1991 to 927 in the 2001 census.It is
slightly increaded in 2011 i.e. 944.[1] Around 80% of the total districts in the
country registered a decline in CSR between 1991-2001. 204 or about 35% of the
districts registered child sex ratios below the national average of 927 females
per 1000 males. In the 1991 census,
there was only one district with a sex ratio below 850, but in the 2001 census,
there were 49 such districts.
|
Child
sex ratio in 0-6 age group
|
Number
of Districts
|
|
Less than 800
|
16
|
|
800-849
|
33
|
|
850-899
|
72
|
|
900-949
|
213
|
|
950-999
|
245
|
|
1000-1049
|
21
|
|
Total
|
591
|
Source: Provisional census tables, 2001.[2]
Section 312 to 316 of the Indian Penal Code made induced abortion
punishable as far back in 1860. Section 312 makes causing of miscarriage with consent of women and section 313 causing
miscarriage without the consent of women, punishable.
As early as 1886, a woman was charged for causing herself to miscarry,
though she had been pregnant for only one month and there was nothing which
could be called a foetus or child. The lower Court acquitted the woman taking a
lenient view of the matter. But the High Court held the acquittal was bad in
law emphasizing that it was the absolute duty of a prospective mother to
protect her infant from the very moment of conception.[3]
A person who aids and facilitates a miscarriage is liable for abetment
of the offence of miscarriage under section 312, read with section 109 of
Indian Penal Code, even though abortion did not take place.[4] A person is also liable
for attempt to commit a criminal abortion under section 312 read with section
511 IPC, even if he fails in his endeavour. In Queen Empress v. Aruna Bewa[5] where the term of
pregnancy was almost complete and an attempted abortion resulted in the birth
of the child, a conviction under section 312 was set aside and one under
section 511, IPC for attempt to bring about miscarriage was maintained. Section
312, IPC permits abortion only on therapeutic (medical) grounds in order to
protect the life of mother. The provision by implication recognizes the
foetus’s right to life. The threat to life however need not be imminent or
certain.
In Rex v. Bourne,[6] a girl under fifteen, who
was criminally assaulted in the most revolting circumstances, became pregnant.
An eminent obstertrics surgeon and gynaecologist, who terminated the pregnancy
was charged under section 58 of the Offences Against The Person Act, 1861 for
causing abortion against the law. The Jury gave a verdict of acquittal since
the crown failed to comply with the obligation of proving that the operation
was not procured for the purpose of preserving the life of the woman, therefore
holding that therapeutic abortions are lawful.
In the case of Madan Raj Bhandari v. State of Rajasthan,[7] the accused was charged
and tried for an offence of abetting one R to cause abortion of child in the
womb of the deceased, but curiously enough he was convicted for abetting the
deceased to cause her miscarriage. Throughout the trial the accused was asked
to defend himself against the said charge and, at no stage, he
was asked that he would be tried for an offence of having abetted the deceased
to cause the miscarriage. It was held that accused was likely to have been
prejudiced by the charge on the basis of which he was tried and therefore the
conviction of accused under section 314 read with section 109 IPC was set
aside.
To soften the rigours of law of abortion contained in Indian Penal Code,
the Medical Termination of Pregnancy Act, 1971 was passed. Section 3 of the MTP
Act, 1971, modified the strict provisions of the law of abortion as contained
under section 312 of IPC by permitting abortion in some situations. During the
1970s, the U.S. Supreme Court in two landmark decisions, Roe v. Wade[8]
and Deo v. Bolton[9]
upheld the right of a woman to an abortion for the first 3 months of pregnancy
as being an element of the right of privacy given by the fourteen amendment to
the US Constitution. Section 313 to 316 of Penal Code provides for enhanced
punishment in cases of aggravating nature of offence of miscarriage. In Maideenkutty Haji v. Kunhikaya,[10] the Kerala High Court
held that no offence under section 313 IPC could not be made out, where the
only allegation in the complaint was that on hearing that woman was pregnant,
the accused took her to a doctor, who terminated her pregnancy and there was no
case that it was without her consent.
In the case of Dr. Jacob George v. State of Kerala,[11] a homeopathic doctor
while performing surgical operation for abortion of a pregnant lady with her
consent caused perforation of her uterus resulting in her death. Since the case
was not covered by any of the exceptions under section 3 of the Medical
Termination of Pregnancy Act, 1971, the Supreme Court upheld the conviction but
reduced the sentence from 4 years (as awarded by High Court) to period already
undergone (2 months) and enhanced the compensation to rupees one lakh. The
judgment however did not express any opinion on the right of the woman to go for
abortion, as this question did not arise directly in this case. No opinion was
expressed on whether such a right can be read in Article 21 of the Constitution
of India and if so, to what extent.
In the case of Sharif v. State of Orissa,[12] the Orissa High Court
held that where termination of pregnancy of a minor girl was performed to save
the life of the mother, Section 312 of IPC was not attracted.
A writ petition was filed in 1995 bringing to the notice of the Supreme
Court of India about the social evils of female foeticide and infanticide. The
said writ petition was disposed of in view of the National Programme of Action
for Education of Female Foeticide and Infanticide of 1995 taken up by the
Department of Women and Child Development, Ministry of Human Resource
Development, Government of India.[13]
In the cases of Surendra Chauhan v. State of M.P.,[14] accused was charged with
causing miscarriage. Accused who was having illicit relations with deceased,
took the girl to a doctor who was not qualified for terminating pregnancy nor
was his clinic equipped and approved by Government as required under Rule 4 of
Medical Termination of Pregnancy Rules 2003. The girl died in the clinic due to
shock or due to non-application of anaesthesia while undergoing abortion. The
accused was convicted under section 314/34, of IPC but the sentence was reduced
from 7 years RI to 1½ years RI and fine was enhanced from Rs. 10,000/- to Rs.
25,000/- payable to deceased’s mother.
A woman underwent a forced abortion after the needless were injected
twice for aminocentesis test on the female, as septic had developed while
performing the test.
The High Court of Delhi found that the framing of charge under section
313/269 IPC[15]
proper, in this case, as the patient cannot be assumed to have consented for
insertion of needle which can cause septic.
In another case, State of
Maharashtra v. Flora Santuno Kutino
& Ors,[16]
the High Court of Bombay reversed the acquittal by Trial Court and convicted
the accused under section 312, 315 & 316 of IPC for causing death of the
girl due to forced abortion.
In a recent case,[17] the Gujarat High Court
reversed the conviction and acquitted the accused. Prosecution case was that the
husband and mother-in-law came to know that foetus was of a female child, they
resorted to witchcraft and ultimately got the foetus aborted with the help of
unqualified midwives. Even after profused bleeding during abortion, the
deceased was not taken to the hospital. The
grounds on which the conviction of appellants was set aside were:
(i) Trial Court erred in recording
conviction of appellants for offences punishable under section 304-A and 313
and 314 IPC. Ingredients for both the offences are
contradictive and cannot go together. Section 304-A, pre-supposes a negligent
act; which rules out any intentional act whereas sections 313 & 314 can be
founded only on intentional act of the accused and not negligence.
(ii) Factum of forced miscarriage is not
proved and possibility of natural miscarriage cannot be ruled out.
Despite legislations
being in place, the dwindling number of girls is on the rise. The Prenatal Diagnostic Techniques
[Regulation and Prevention of Misuse] Act, 1994 remained on the statute books
without making any impact on the selective abortions taking place in the
country.
It took a public interest litigation filed under Article 32 of the
Constitution before the Supreme Court to bring to the notice of the Judiciary
the non implementation of the PNDT Act.
Writ Petition [Civil] No. 301 of 2000 – Centre for Enquiry into Health and Allied Themes [CEHAT] v. Union of India[18]
was preferred by CEHAT, a research centre of “Anusandhan Trust” based in Pune
and Mumbai, “Mahila Sarvangeen Utkarsh Mandal” [MASUM] based in Maharashtra and
Dr. Sabu M. George who had experience and technical knowledge in the field. The
PIL sought to accomplish the following objectives:
§ To
activate the Central and State Governments for rigorous implementation of the
Central legislation and
§ To
interpret the legislation and / or to demand amendments to ensure that the
techniques that use pre-conception or during conception sex selection are also
brought under the purview of the PNDT Act.
After filing of this petition, notices were
issued and thereafter various orders from time to time were passed to see that
the Act is effectively implemented.
A] On 4th May 2001 , following order was passed:—
"It is unfortunate that for one reason or the other, the practice
of female infanticide still prevails despite the fact that gentle touch of a
daughter and her voice has soothing effect on the parents. One of the reasons may be the marriage
problems faced by the parents coupled with the dowry demand by the so-called
educated and/or rich persons who are well placed in the society. The traditional system of female infanticide
whereby female baby was done away with after birth by poisoning or letting her
choke on husk continues in a different form by taking advantage of advance
medical techniques.
For controlling the situation, the Parliament in its wisdom enacted the
Pre-natal Diagonstic Techniques (Regulation and Prevention of Misuse) Act, 1994
(hereinafter referred to as "the PNDT Act"). The Preamble, inter alia, provides that the object of the Act is to prevent the
misuse of such techniques for the purpose of pre-natal sex determination
leading to female feoticide and for matters connected therewith or incidental
thereto. The Act came into force from
1st January, 1996.
It
is apparent that to a large extent, the PNDT Act is not implemented by the
Central Government or by the State Governments. Hence, after considering the
respective submissions made at the time of hearing of this matter, as suggested
by the learned Attorney General for India, Mr. Soli J. Sorabjee following
directions are issued on the basis of various provisions for the proper
implementation of the PNDT Act:
I. Directions to the Central
Government
1. The Central Government is directed to
create public awareness against the practice of pre-natal determination of sex
and female foeticide through appropriate releases / programmes in the
electronic media. This shall also be
done by Central Supervisory Board ("CSB" for short) as provided under
Section 16(iii) of the PNDT Act.
2. The Central Government is directed to
implement with all vigor and zeal the PNDT Act and the Rules framed in
1996. Rule 15 provides that the intervening period between
two meetings of the Advisory Committees constituted under sub-section (5) of
Section 17 of the PNDT Act to advise the appropriate authority shall not exceed
60 days. It would be seen that this Rule
is strictly adhered to.
II.
Directions to the Central Supervisory Board (CSB)
1. Meetings of the CSB will be held at
least once in six months. [Re. Proviso to Section 9(1)]. The constitution of the CSB is provided under
Section 7. It empowers the Central Government to appoint ten members under
Section 7(2)(e) which includes eminent medical practitioners including eminent
social scientists and representatives of women welfare organizations. We hope that this power will be exercised so
as to include those persons who can genuinely spare some time for
implementation of the Act.
2. The CSB shall review and monitor the
implementation of the Act. [Re. Section 16(ii)].
Appropriate Authorities to furnish quarterly returns to the CSB giving a
report on the implementation and working of the Act. These returns should inter alia contain
specific information about:
(i) Survey of bodies specified in section 3
of the Act.
(ii) Registration of bodies specified in
section 3 of the Act.
(iii) Action taken against non-registered bodies
operating in violation of section 3 of the Act, inclusive of search and seizure
of records.
4. The CSB shall examine the necessity to
amend the Act keeping in mind emerging technologies and difficulties
encountered in implementation of the Act and to make recommendations to the
Central Government. [Re. Section 16]
5. The CSB shall lay down a code of
conduct under section 16(iv) of the Act to be observed by persons working in
bodies specified therein and to ensure its publication so that public at large
can know about it.
6. The CSB will require medical
professional bodies/associations to create awareness against the practice of
pre-natal determination of sex and female foeticide and to ensure implementation
of the Act.
III.
Directions to State Governments/UT Administrations
1. All State Governments/UT
Administrations are directed to appoint by notification, fully empowered
Appropriate Authorities at district and sub-district levels and also Advisory
Committees to aid and advise the Appropriate Authority in discharge of its
functions [Re. Section 17(5)]. For the
Advisory Committee also, it is hoped that members of the said Committee as
provided under section 17(6)(d) should be such persons who can devote some time
for the work assigned to them.
2. All State Governments/UT
Administrations are directed to publish a list of the Appropriate Authorities
in the print and electronic media in its respective State/UT.
3. All State Governments/UT
Administrations are directed to create public awareness against the practice of
pre-natal determination of sex and female foeticide through advertisement in
the print and electronic media by hoarding and other appropriate means.
These returns should inter alia contain specific information about:
(i) Survey of bodies specified in section 3
of the Act.
(ii) Registration of bodies specified in
section 3 of the Act.
(iii) Action taken against non-registered bodies
operating in violation of section 3 of the Act, inclusive of search and seizure
of records.
(iv) Complaints received by the Appropriate
Authorities under the Act and action taken pursuant thereto.
(v) Number and nature of awareness campaigns
conducted and results flowing therefrom.
IV. Directions to Appropriate
Authorities
1. Appropriate Authorities are directed to
take prompt action against any person or body who issues or causes to be issued
any advertisement in violation of section 22 of the Act.
2. Appropriate Authorities are directed to
take prompt action against all bodies specified in section 3 of the Act as also
against persons who are operating without a valid certificate of registration
under the Act.
3. All State/UT Appropriate Authorities
are directed to furnish quarterly returns to the CSB giving a report on the
implementation and working of the Act.
These returns should inter alia contain specific information about:-
(i) Survey of bodies specified in section 3
of the Act.
(ii) Registration of bodies specified in
section 3 of the Act including bodies using ultrasound machines.
(iii) Action taken against non-registered bodies
operating in violation of section 3 of the Act, inclusive of search and seizure
of records.
The CSB and the State Governments/Union
Territories are directed to report to this Court on or before 30th July
2001. List the matter on 6.8.2001 for
further directions at the bottom of the list."
B] Inspite of the above
order, certain States/UTs did not file their affidavits. Matter was adjourned from time to time and on 19th September, 2001, following
order was passed:—
"Heard the learned counsel for the parties and considered the
affidavits filed on behalf of various States.
From the said affidavits, it appears that the directions issued by this
Court are not complied with.
1. At the outset, we may
state that there is total slackness by the Administration in implementing the
Act. Some learned counsel pointed out
that even though the Genetic Counseling Centre, Genetic Laboratories or Genetic
Clinics are not registered, no action is taken as provided under Section 23 of
the Act, but only a warning is issued.
In our view, those Centres which are not registered are required to be
prosecuted by the Authorities under the provisions of the Act and there is no
question of issue of warning and to permit them to continue their illegal
activities. It is to be stated that the Appropriate Authorities or any officer
of the Central or the State Government authorised in this behalf is required to
file complaint under Section 28 of the Act for prosecuting the offenders.
Further wherever at District Level, appropriate authorities are
appointed, they must carry out the necessary survey of Clinics and take
appropriate action in case of non-registration or non-compliance of the
statutory provisions including the Rules.
Appropriate authorities are not only empowered to take criminal action,
but to search and seize documents, records, objects etc. of unregistered bodies under Section 30 of the Act.
2. It has been pointed out
that the States/Union Territories have not submitted quarterly returns to the
Central Supervisory Board on implementation of the Pre-Natal Diagnostic
Techniques (Regulation and Prevention of Misuse) Act, 1994 (hereinafter
referred to as "the Act").
Hence it is directed that the quarterly returns to Central Supervisory
Board should be submitted giving the following information:-
(a) Survey of Centres,
Laboratories/Clinics,
(b) Registration of these
bodies,
(c) Action taken against
unregistered bodies,
(d) Search and Seizure,
C] On 7th November, 2001, learned counsel for the Union of India
stated that the Central Government has decided to take concrete steps for the
implementation of the Act and suggested to set up National Inspection and
Monitoring Committee for the implementation of the Act. It was ordered accordingly.
D] On 11th December, 2001, it was pointed out that certain State
Governments have not disclosed the names of the members of the Advisory
Committee. Consequently, the State Governments were directed to publish the
names of advisory committee in various districts so that if there is any
complaint, any citizen can approach them.
The Court further observed thus:—
"For implementation of the Act and the rules, it appears that it
would be desirable if the Central Government frames appropriate rules with
regard to sale of ultrasound machines to various clinics and issue directions
not to sell machines to unregistered clinics.
Learned counsel Mr. Mahajan appearing for Union of India submitted that
appropriate action would be taken in this direction as early as possible."
E] On March 31, 2003,[19] it was pointed out that
in conformity with the various directions issued by this Court, the Act has
been amended and titled as "The Pre-conception and Pre-natal Diagnostic
Techniques (Prohibition of Sex Selection) Act". It was submitted that people are not aware of
the new amendment and, therefore, following reliefs were sought:—
a) direct the Union of India, State
Governments / UTs and the authorities constituted under the PNDT Act to
prohibit sex selection techniques and its advertisement throughout the country;
b) direct that the appropriate authorities
shall also include "vehicles" with ultra sound machines etc., in their quarterly reports
hereinafter as defined under Section 2(d);
c) direct appropriate authorities to
initiate suo moto legal action under
the amended section 17(iv)(e);
1) Survey of bodies and the number of
bodies registered.
2) Functioning of the regulatory bodies
providing the number and dates of meetings held.
3) Action taken against non-registered
bodies inclusive of search and seizure of records.
As against this, Mr. Mahjan learned counsel
appearing for the Union of India submits that on the basis of the aforesaid
amendment, appropriate action has already been taken by Union of India for
implementation and almost all State Governments/UTs are informed to implement
the said Act and the Rules and the State Governments/UTs are directed to submit
their quarterly report to the Central Supervisory Board.
Considering the amendment in the Act, in our view, it is the duty of the
Union Government as well as the State Governments/UTs to implement the same as
early as possible."
F] At the time of hearing,
learned counsel for the petitioners submitted
that appropriate directions including the steps which are required to be taken on the basis of PNDT Act
and the suggestion as given in the written submission be issued. On this aspect, learned counsel for the
parties were heard.
In view of the various directions issued by
this Court, as quoted above, no further
directions are required except that the directions issued by this Court on May
4, 2001, November 7, 2001, December 11,
2001 and March 31, 2003 should be complied with. The Central Government / State Governments /
UTs are further directed that:—
a) For effective implementation of the
Act, information should be published by way of advertisements as well as on
electronic media. This process should be
continued till there is awareness in public that there should not be any
discrimination between male and female child.
b) Quarterly reports by the appropriate
authority, which are submitted to the Supervisory Board should be consolidated
and published annually for information of the public at large.
c) Appropriate authorities shall maintain
the records of all the meetings of the Advisory Committees.
e) As provided under Rule 17(3), public
would have access to the records maintained by different bodies constituted
under the Act.
1.
Delhi 2. Himachal Pradesh 3.
Tamil Nadu 4. Tripura 5. Uttar Pradesh.
The case continued for three and half years and the course of PIL
brought the issue of sex selection back into debate. The laxity of law implementing machinery was
brought to the notice and as a result each State has taken stalk of what they
have done towards implementation of the Act also the amendments to the PNDT Act
were made to incorporate the suggestions of NGOs and directions of the Supreme
Court of India.
In Voluntary
Health Ass. Of Punjab vs Union Of India & Ors. on 4 March, 2013[20]
Allied Themes (CEHAT) and others v. Union of India
and others [1], the two-Judge Bench commenced the judgment stating that the
practice of female infanticide still prevails despite the fact that the gentle
touch of a daughter and her voice has a soothing effect on the parents. The
Court also commented on the immoral and unethical part of it as well as on the
involvement of the qualified and unqualified doctors or compounders to abort
the foetus of a girl child. It is apposite to state here that certain
directions were given in the said decision.
5. Female foeticide has its roots in the social thinking which is
fundamentally based on certain erroneous notions, ego-centric traditions,
pervert perception of societal norms, and obsession with ideas which are
totally individualistic sans the collective good. All involved in female
foeticide deliberately forget to realize that when the foetus of a girl child
is destroyed, a woman of future is crucified. To put it differently, the
present generation invites the sufferings on its own and also sows the seeds of
suffering for the future generation, as in the ultimate eventuate, the sex
ratio gets affected and leads to manifold social problems
this demand is made on three occasions: (i) before marriage; (ii) at the
time of marriage; and (iii) after the marriage. Greed being limitless, the
demands become insatiable in many cases, followed by torture on the girl,
leading to either suicide in some cases or murder in some.”
The aforesaid passage clearly reflects the degree of anguish of this
Court in regard to the treatment meted out to the women in this country.
7. It is not out of place to state here that the restricted and
constricted thinking with regard to a girl child eventually leads to female
foeticide. A foetus in the womb, because she is likely to be born as a girl
child, is not allowed to see the mother earth. In M.C. Mehta v. State of Tamil
Nadu and others [3], a three-Judge Bench, while dealing with the magnitude of
the problem in engagement of the child labour in various hazardous factories or
mines, etc., speaking through Hansaria, J., commenced the judgment thus: -
“I am the child. All the word waits for my coming. All the earth watches
with interest to see what I shall become. Civilization hangs in the balance.
For what
regarded as an equal partner in the life of a man. It has to be borne in
mind that she has also the equal role in the society, i.e., thinking,
participating and leadership. The legislature has brought the present piece of
legislation with an intention to provide for prohibition of sex selection
before or after conception and for regulation of pre-natal diagnostic
techniques for the purposes of detecting genetic abnormalities or metabolic
disorders or chromosomal abnormalities or certain congenital malformations or
sex-linked disorders and for the prevention of their misuse for sex
determination leading to femalefoeticide. The purpose of the enactment can only
be actualised and its object fruitfully realized when the authorities under the
Act carry out their functions with devotion, dedication and commitment and
further there is awakened awareness with regard to the role of women in a
society.
12. It would not be an exaggeration to say that a society that does not
respect its women cannot be treated to be civilized. In the first part of the
last century Swami Vivekanand had said: -
“Just as a bird could not fly with one wing only, a nation would not
march forward
women are left behind.”
OUTCOME OF THE PIL
At the National and State levels the media disseminated the various
directives issued by the Court. The
States and the Union took some steps to raise public awareness. In a few instances individuals and State
agencies took some proactive action [eg.
Against the episode of T.V. serial “Kyo ki Saas Bhi Kabhi Bahu Thi” and
“Kudrat” on Doordarshan promoting sex determination, booking of errant
diagnostic centres in Faridabad etc.]. The medical community all over the country
for the 1st time took notice of the Act and discussed the
implications. The implementation of the
Act was initiated at various levels. The
registration of clinics under the Act went up from 600 to 19,000 over the
period May 2001 to September, 2002. The
violations filed before 2001 amounted to about 2 to 3 cases which increased to
about three hundred.[21] States went about putting
machinery such as the advisory committees and the Appropriate Authority into
order.
As the Apex court was monitoring the implementation of its directions,
States tried to put up a good show by indicating the action taken on their
part. Even though, the PIL was able to
initiate debate, the mindset of the society remained unchanged. One such married couple who felt that female
foeticide was justified, challenged the Constitutional validity of the
Preconception and Prenatal Diagnostic Techniques [Prohibition of Sex Selection]
Act of 1994.[22]
The petition contained two challenges to the enactment. First it violates Article 14 of the
Constitution and second, that it violates Article 21 of the Constitution of
India. The basic contention of the
petitioner was that personal liberty of a citizen of India includes liberty of
choosing the sex of the offspring.
Therefore, they are entitled to undertake any such medical procedure
which provides for determination of selection of sex, which may come into
existence after conception.
The Division Bench of Bombay
[V.G.Palshika & V.C.Daga JJ.] declared that right of personal liberty
cannot expand by any stretch of imagination, to liberty to prohibit coming into
existence of a female foetus or male foetus which shall be for the nature to
decide. They observed that right to
bring into existence a life in future with a choice to determine the sex of
that life cannot in itself be a right.
The Bench dismissed the Writ Petition as there was no violation of
Article 21 of the Constitution of India.
Realising the implications of dwindling numbers of girls and the sorry
state of affairs as to the poor implementation of the various laws prohibiting
sex selective abortions, the judiciary declared the year of 2007 as the ‘Awareness year of female foeticide’ and
the then Chief Justice of India Y.K.Sabharwal declared that the system will
deal strictly with those responsible for the crime of female foeticide.[23]
In a recent case,[24] the Supreme Court of
India, had occasion to determine the scope of some of the Provisions of Medical
Termination of Pregnancy Act, 1971. The matter involved an orphan woman of the
age 19-20 years, who was also suffering from mild mental retardation, was found
pregnant [allegedly on having been raped], while staying in a Government run
welfare institution [the victim]. The
respondent administration approached the High court seeking order for
termination of her pregnancy. The High court after calling for reports from two
Expert Committees, ordered termination of the victim’s pregnancy.
First Expert Committee recommended termination of pregnancy while the
second committee recommended continuation of pregnancy. By the time the appeal was heard by the
Supreme Court, the victim’s pregnancy had reached 19 weeks as against limit of
20 weeks prescribed in Section 3(2)(b) of the Medical Termination of Pregnancy
Act, 1971, for termination of pregnancy.
The victim too had desired for continuation of her pregnancy.
The issues before the Supreme Court were, (i) whether it was legally
permissible to terminate the victim’s pregnancy even when she had not given consent
for it, and (ii) whether it was in the victim’s best interest to terminate her
pregnancy or to continue it.
Reversing the High Court order for termination of pregnancy, the Supreme
Court held:
1.
When the MTP Act was first enacted
in 1971, it was largely modeled on the Abortion Act, 1967 of the United
Kingdom. Indian law allows abortion only
if specified conditions are met. The
legislative intent is to provide qualified “right to abortion”, and termination
of pregnancy has never been recognized as a normal recourse for expecting
mothers. There is also a “compelling State interest” in protecting life of
prospective child. Termination of pregnancy is therefore permitted only when
conditions specified in the Act are fulfilled. Provisions of the MTP Act can be
viewed as reasonable restrictions that have been placed on exercise of
reproductive choices. Though termination
of pregnancy is permissible in the circumstances laid down in Sections 3(2)(i)
and 3(2)(ii), yet in all such circumstances, consent of pregnant woman is an
essential requirement for proceeding with termination of pregnancy. However, Sections 3(4)(a) and 5(1) create
exceptions to the rule of pregnant woman’s consent, namely, when pregnant woman
is below 18 years or is mentally ill, guardian`s consent is required, or when a
registered medical practitioner forms an opinion in good faith that termination
of pregnancy is immediately necessary to save the life of pregnant woman. However, none of the exceptions apply in the
present case.
2. The State could claim that it is
guardian of the pregnant victim since the victim is an orphan and has been
placed in a Government-run welfare
institutions. However, the State`s claim to guardianship cannot be mechanically
extended in order to make decisions about termination of her pregnancy because
the victim is not a minor. Though she
suffers from “mild mental retardation” yet she is not a “mentally ill person”
as contemplated by Section 3(4)(a) of the MTP Act.
3.
The 2002 Amendment to the MTP Act
replacing the word “lunatic” with “mentally ill person” indicates that the
legislative intent was to narrow down the class of persons on behalf of whom
their guardians could make decisions about termination of pregnancy. A similar distinction can also be found in
the Persons with Disabilities [Equal Opportunities, Protection of Rights and
Full Participation] Act, 1995. This
legislation treats “mental illness” and “mental retardation” as two different
forms of “disability”. These legislative
provisions show that persons who are in a condition of “mental retardation”
should ordinarily be treated differently from those who are found to be
“mentally ill”. While a guardian can
make decisions on behalf a “mentally ill person” as per Section 3(4)(a) of the
MTP Act, the same cannot be done on behalf of a person who is in a condition of
“mental retardation”. It must be
emphasized that while the distinction between these statutory categories can be
collapsed for the purpose of empowering the respective classes of persons, the
same distinction cannot be disregarded so as to interfere with the personal
autonomy that has been accorded to mentally retarded persons for exercising
their reproductive rights. The State
must respect the personal autonomy of a mentally retarded woman with regard to
decisions about terminating a pregnancy.
While explicit consent of woman is
not a necessary condition for continuing pregnancy, such consent is an
essential condition for proceeding with termination of pregnancy.
4.
Special emphasis should be placed
on Principle 7 of the United Nations Declaration on the Rights of Mentally
Retarded Persons, 1971 which prescribes that a fair procedure should be used
for the “restriction or denial’ of the rights guaranteed to mentally retarded
persons, which should ordinarily be the same as those given to other human
beings.
5.
A woman`s right to make reproductive choices is also a dimension of
“personal liberty” as understood under Article 21 of the Constitution. Reproductive choices can be exercised to
procreate as well as to abstain from procreating. The crucial consideration is that a woman`s
right to privacy, dignity and bodily integrity should be respected. This means that there should be no
restriction whatsoever on exercise of reproductive choices such as woman`s
right to refuse participation in sexual activity or alternatively, insistence
on use of contraceptive methods. Women
are also free to choose birth control methods such as undergoing sterilization procedures. Reproductive
rights include a woman`s entitlement to carry pregnancy to its full term, to
give birth and to subsequently raise children.
The Judicial interpretation of the provisions
has been a mixed bag. It has been difficult to get a conviction and where such
conviction has been recorded, the Courts have been very lenient in granting of
punishment; thereby allowing the persons to come out and repeat the heinous
acts without spending enough time in prison in realization as to the injury
caused to the person and to society at large and thereby defeating the very
purpose of awarding such punishments.
[1]
www.census2011.co.in/sexratio.php
[3] Q.E. v. Ademma, 1886 ILR Mad 369.
[4] Explanation 2 to Section 109 of Indian Penal Code.
[5] (1873) 19 WR (Cri) 230.
[6] (1938) 3 All ER 615, 621.
[7] AIR 1970 SC 436, 438.
[8] 410 US 113 (1973).
[9] 41 USLW 4233 (1973).
[10] AIR 1987 Ker 184 (FB)
[11] (1994) 3 SCC 430.
[12] 1996 Cri. LJ 2826 Ori.
[13] Chetna, Legal Advisory
W.C.D. Society v. Union of India,
(1998) 2 SCC 158.
[14] (2000) 4 SCC 110.
[15] Dr. Meenu Bhatia Prasad
v. State, 2002 Cri.LJ 1674 (Del.).
[16] 2007 Cri.LJ 2233 (Bom).
[17] Harpreet Singh v. State of H.P., 2009 Cri.LJ 3535 (Guj).
[18] AIR 2001 SC 2007.
[19] CEHAT v. Union
of India, (2003) 8 SCC 398.
[20] W.P. (c) 349-2006 Supreme Court of India on 04 March 2013
[21] Supra 1 note 1.
[22] Criminal Writ Petition No. 945 of 2005, Vinod Soni & Anr v. Union
of India, decided by Bombay High Court on 13.05.2005.
[23] http://www.savegirlchild.org/legal- jurisdiction.html.
[24] Suchitra Srivastava v.
Chandigarh Administration, (2009) 9 SCC1.
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