TWO DAYS after it allowed a married woman to medically terminate her 26-week pregnancy, a two-judge all-woman bench of the Supreme Court Wednesday disagreed on giving the go-ahead for the procedure and referred her plea to the Chief Justice of India to be considered by an appropriate bench of larger strength.
While Justice B V Nagarathna said the petitioner’s “decision” not to continue with the pregnancy “must be respected”, Justice Hima Kohli said “my judicial conscience does not permit” acceding to her request.
What changed Justice Kohli’s mind was an email from an AIIMS doctor, seeking clarification on the Supreme Court’s October 9 order permitting the woman to undergo MTP (medical termination of pregnancy) and asking her to appear before the AIIMS authorities for the procedure.
“Having regard to the information obtained in the email… I am not inclined to permit the petitioner to terminate the pregnancy,” Justice Kohli said.
Differing with this, Justice Nagarathna said the October 9 order was a “well considered” one and “having regard to the concrete determination made by the petitioner, I find that her decision must be respected. The court is here not to substitute its decision for the decision of the petitioner”.
The woman, a mother of two, had approached the court stating that she was suffering from lactational amenorrhea and depression and was, therefore, unwilling to continue with the pregnancy.
The communication dated October 10, which was addressed by the doctor to Additional Solicitor General Aishwarya Bhati who represented the Centre in the matter, said the foetus appeared to be “viable” indicating a “strong possibility of survival”.
The doctor said that in light of the situation, “we will need a directive from the Supreme Court on whether a foeticide (stopping the foetal heart) can be done before termination”. The communication pointed out that doctors “perform this procedure (foeticide) for a foetus which has abnormal development, but generally not done in a normal foetus”.
ExplainedThe right, the limit
All women in the country, regardless of marital status, can end pregnancy up to 24 weeks. In September 2022, the Supreme Court extended the right to safe and legal abortion up to 24 weeks of pregnancy to unmarried and single women.
Following the email, Bhati moved the court of CJI D Y Chandrachud Tuesday evening itself. The CJI asked the Centre to file a formal application for recall of the October 9 order and asked AIIMS to put it on hold until the application was heard Wednesday by the bench of Justices Nagarathna and Kohli.
Hearing the matter, Justice Kohli took serious exception to AIIMS authorities seeking clarification by citing fresh concerns, and asked why the concerns were not conveyed to the court earlier when it had sought a medical opinion on the woman’s request for MTP permission.
Justice Nagarathna also conveyed her displeasure over the Centre approaching the CJI’s bench against its order and said, “If a private party does that, there will be breakdown of the system of this court. We are concerned and disturbed about this,” she said.
“Tell us, when this court decides a matter, without any pleading whatsoever, how can you move an intra-court appeal before a three-judge bench of this court and then interfere with the order of this court? We do not appreciate this. If the Union of India starts doing this, tomorrow a private party will also start doing it. We are an integral court. Every bench of the Supreme Court is the Supreme Court. We are one court sitting in separate benches. Speaking for myself, I don’t appreciate this on the part of the Union of India. You could have only asked for the constitution of a bench after filing pleadings. Even in the absence of a pleading, you have moved the Hon’ble Chief Justice. How is it possible?” she said.
Bhati said that upon receipt of the AIIMS letter seeking clarification, she tried to approach Justice Kohli, who was sitting in a different bench combination, but was asked to approach the CJI, because it is only the CJI who can reconstitute the special bench to hear a recall application.
At this, Justice Nagarathna said, “That is one thing. But in the absence of a pleading, how can you go and disturb the court of the Hon’ble Chief Justice and seek an intervention?”
To the bench’s query on why the government could not have waited for one more day, Bhati said, “Since the court’s direction was to carry out the termination yesterday only, I had to mention (the matter).”
Conveying her displeasure over the email, Justice Kohli said, “What’s being said now… is entirely much wider. This is not what was being said (earlier). If they wanted, they could have done all of that then, and the court would have taken notice of it because we are relying on the report… We ourselves asked for it… How is it that they decided to go this way only after the order was passed and not earlier?”
Bhati said, “These questions had arisen in our minds during the hearing of the matter.”
Justice Kohli said, “That is you as an individual. We are laypersons… Why do we rely on the medical report? Because we don’t know and they know better. And we are relying on a report because there is a whole team that is part of that interaction with the patient… After giving us an ambiguous report and saying yes, the lady does have that problem, it could go up, the mental issues and she could have then postpartum also, to say now… And which court will, pray, say stop a heartbeat of a foetus which has a life? We are wondering! Which court would do that? Speaking for myself, I wouldn’t. So why weren’t they not so candid we are very curious to know. Why were they hedging?”
“Now to say there is a strong possibility of survival and that we will stop the heartbeat if the court says. For heaven’s sake, which court will stop the foetal heartbeat? If this was the stand they had to take, they should have said all of it at that point in time, that though there is a financial, physical, mental, emotional thing on the lady, if you keep the child a bit longer, and we persuade her, the option of adoption could have been considered. Because if you remember, the parents did say that if we have no option, we will like to continue with the pregnancy and retain the child with us,” Justice Kohli said.
Bhati said “they were extensively counselled” and “in all fairness, she (the woman seeking permission for MTP) was a little undecided”.
The bench also interacted with the woman and her husband in light of the new medical opinion.
As the woman insisted that she did not want to have the child, Justice Kohli tried to explain that keeping the foetus for a few more weeks would improve the chances of it being born healthy, failing which there was a risk of it being born alive with physical and mental disabilities.
However, the woman said that she did not want to postpone the MTP.
The bench then asked her to submit an affidavit making clear what she wants. She accordingly furnished the affidavit stating “I have made a wilful and conscious decision to medically terminate my pregnancy and don’t want to keep the baby even if it survives”.
In the order, Justices Nagarathna and Kohli recorded their respective displeasure with the Centre and the email communication.
Justice Nagarathna also wrote, “This is not a case where the question of viable baby being born or unborn is to be really considered when the interest of the petitioner has to be given more balanced width and reference the socio-economic situation in which the petitioner is placed, the fact that she already has two children, the second child being only one year of age and the fact that she has reiterated that her mental condition, and the medicines she is taking for a mental condition, do not permit her to continue with the pregnancy.”
While Justice B V Nagarathna said the petitioner’s “decision” not to continue with the pregnancy “must be respected”, Justice Hima Kohli said “my judicial conscience does not permit” acceding to her request.
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