Supreme Court allows rape survivor to terminate pregnancy, takes exception to Gujarat High Court’s earlier order

“We do not appreciate the High Court’s counterblast to the Supreme Court’s orders. What is happening in the High Court of Gujarat? Do judges reply like this to the superior court’s order?” asked Justice Nagarathna.

In a special sitting on August 19, the SC had expressed displeasure over how the Gujarat High Court had proceeded with the case and said the valuable time had been lost until the HC listed it for hearing, more than a week after receiving the woman’s medical report on August 10.

The counsel representing the appellant had told the SC that the plea was filed before the HC on August 7 and it took it up the next day when it issued directions that a medical team be constituted to find out if abortion is possible.

The report was submitted to the Gujarat HC on August 10, and a day later, the court took it on record and adjourned it till August 23. However, it took up the matter on August 17 and dismissed the prayer for abortion.

Shortly after the August 19 SC order, the High Court also passed an order where it said that “it has come to the notice of this Court that there was an error in transcribing order dated 17.08.2023” and explaining the sequence of events.

The HC said on August 11, it was “not inclined to entertain the application” seeking permission to conduct abortion. The HC said it had “inquired from” the petitioner’s counsel for the applicant “whether” she “wants to avail the benefits of existing schemes of the Woman and Child Development and Social Justice Department, State Government, for the betterment of the applicant-victim or not?”.

The High Court said the counsel “has sought time to take instructions…in this regard. Therefore, the matter was adjourned to 23.08.2023…”.

However, the matter was notified for hearing before the HC again on August 17 and the woman’s counsel “requested to pass appropriate order as he wants to challenge the order of this Court before the Hon’ble Supreme Court because the applicant-victim did not want to continue with the pregnancy. So, this Court has passed the order”.

Taking up the August 19 order of the Gujarat HC, Justice Nagarathna said Monday, “There is no need of any Hon’ble judge of any court to justify their order…”.

Justice Bhuyan observed, “The view taken (by the HC), I’m sorry to say, is against constitutional philosophy. How can you perpetuate unjust conditions and force the rape survivor to undergo pregnancy?”

Intervening, Solicitor General Tushar Mehta said there seemed to be some misunderstanding and that it’s best ignored.

But Justice Nagarathna asked “How can we ignore?” and added that “no judge can counterblast the Supreme Court’s order”. Though Mehta said that it seemed to be a “clarificatory” order, Justice Nagarathna wondered what was the need for it.

The bench, however, did not record its displeasure in the order and allowed the woman to go ahead with the abortion and asked the hospital to provide all help to keep the foetus alive if it is found so during the surgical procedure.