(Miscellaneous Application No. 2157 of 2023
In
Writ Petition [Civil] No. 1137 of 2023)
Facts and Procedural History
It is instructed that the name of the petitioner be made anonymous in this verdict, all enacted interim orders, and publicly accessible records. The petitioner is a twenty-seven-year-married lady. Her younger child is almost a year old, and she and her spouse are parents to two children. Her request to the parties in question to allow a medical termination of her ongoing pregnancy was submitted in accordance with Article 32 of the statute. Because she experienced lactational amenorrhea, the petitioner claims that she was unaware of her pregnancy until twenty weeks had passed.
Breastfeeding women have non-menstruation due to lactational amenorrhea. Consequently, she was unaware that the lack of menstruation. The petitioner claims that following the birth of her second child, she went to the gynecologist for the first time because she was suffering weak feelings, nausea, dizziness, and discomfort in her abdomen. After undergoing an ultrasound scan, she discovered she was pregnant. At that point, the estimated gestational age of the pregnancy was twenty-four weeks. The petitioner claims that despite her and her husband’s best efforts to end the pregnancy medically at several hospitals, they were unable to do so due to the Medical Termination of Pregnancy Act of 1971 as well as the Medical Termination of Pregnancy Rules 2003. The petitioner thereby invoked this Court’s writ jurisdiction to come before it. She requested authorization for a medical abortion due to the following factors:
- The petitioner is suffering from postpartum depression and her mental condition does not permit her to raise another child; and
- Her husband is the sole breadwinner in their family and they are already responsible for two children. They also have other relatives who rely on them.
On October 5, 2023, the case was scheduled to appear before a two-judge bench. The Bench directed the petitioner to attend a Medical Board set up by the All India Institute of Medical Sciences, New Delhi, on the same day. The Court granted the petition and approved the medical termination of the pregnancy on October 9, 2023, citing the potential severe impact on the petitioner’s mental health from continuing the pregnancy.
A physician from AIIMS, who was on the Medical Board assessing the petitioner, emailed Ms. Aishwarya Bhati, a knowledgeable ASG, on October 10, 2023. The email mentioned that the fetus has a high likelihood of survival and requested the Court’s decision on maintaining the fetus’s heartbeat. The email cautioned about the likelihood of immediate and prolonged physical and mental damage and stated that the baby would need to be placed in an ICU if the fetus’ heart rate was not stopped. AIIMS requested the Court to determine the legality of carrying out a foeticide.
At 4 p.m. on October 10, 2023, Ms. Bhati brought up the case in front of the bench led by the Chief Justice. Ms. Bhati notified this Court that she brought up the matter before Kohli, J. and asked that it be listed due to the urgency created by the email extract above. The petitioners’ attorney and the ASG’s testimony were heard by the two-judge bench. “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,” the petitioner said in an affidavit she filed at this point. When the ASG’s application was heard, the judges were unable to reach a consensus and returned a divided decision. In light of the email addressed to Ms. Bhati, Kohli, J. held in her ruling that she was unable to permit the prayer out of judicial conscience. However, Nagarathna, J. found that the following factors should prevent the ruling of October 9, 2023 from being reversed:
- The priority should be given to the mother’s interest, as she already has two children and will deliver another one within a year after the second one;
- This Court must take into account the petitioner’s socio-economic conditions and mental state;
- The petitioner’s decision should be honored and not overridden by this Court’s decision; and
- A developing baby relies on the mother and cannot be seen as a distinct individual from her since it only exists because of her.
Following the split decision, the petition was directed to be heard by the existing three judge panel, as there was a disagreement between the two judges regarding reconsideration of the order dated 9 October 2023. On the 13th of October in the year 2023, AIIMS was asked by the Court to provide a supplementary report.
Therefore, the questions submitted to the Medical Board for clarification were addressed as follows:
- The medication the petitioner is currently taking would not put the continuation of the pregnancy at risk;
- There are no abnormalities present in the fetus; and
- The individual has a past of postpartum psychosis that is presently managed with medication.
An updated treatment plan was recommended to effectively treat the postpartum psychosis.
ISSUES RAISED
The matters that come up for discussion in this court are:
- What is the nature of the jurisdiction under which this court is dealing with this case; and
- Can the relief sought in writ petition by the petitioner be granted?
CONTENTIONS
~ ON BEHALF OF PETITIONER
The petitioner filed an affidavit clearly stating that “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”.
~ ON BEHALF OF RESPONDENT
The AIIMS medical board, composed of nine doctors, stated in their report that continuing the pregnancy to full term with the revised medications recommended by the psychiatrist on the board is unlikely to pose a significantly higher risk for the mother and fetus compared to other pregnant women.
RATIONALE
The power of the court to oversee this matter. Once a judgment or order is finalized, it is a firmly established legal rule that a party wanting to challenge the outcome must choose from the available options:
- Invoking the jurisdiction of the court to review the verdict;
- Preferring an appeal against the verdict; or
- In Supreme Court case, a curative petition;
This Court has the power to issue any required decree or order as stated in Article 142 of the Constitution to ensure full justice in any case under consideration. The Court in State v. Kalyan Singh stated that Article 142 allows for flexibility in applying the law based on the specific circumstances of the case, providing the Supreme Court with the power to provide full justice and conclusively resolve disputes.
One Article actually flips a common belief about equity on its head, which is that equity follows the law. In the case of State of Punjab v. Rafiq Masih, it was established that according to Article 142, equity is prioritized over law in judgments. However, this equity cannot ignore essential legal provisions when the court gives orders under Article 142.
In this particular instance, the Court is within its rights to use its authority under Article 142 due to the following situations:
This is no regular civil lawsuit. Instead, it involves the practicality of performing a medical abortion and the decision doctors should make based on the fetus’s progress.
It has been observed that the pregnancy has exceeded twenty-four weeks. It has been around 26 weeks and 5 days. There are certain reasons why a medical abortion cannot be authorized:
- After exceeding the legal twenty-four-week limit, either Section 3 (2B) or Section 5 of the statute must be complied with;
- In this instance, a Medical Board has not identified any significant fetal abnormalities. This Court requested another medical report from AIIMS to verify that the case details were correctly presented and no fetal abnormalities were found; and
- Both Medical Boards have not stated that the petitioner’s life requires urgent termination based on their reports.
In accordance with Article 142 of the Constitution, this Court is authorized to ensure full justice. Yet, this ability might not be appealing in all situations. In the event of a medical abortion being performed now, the doctors would encounter a fetus capable of surviving. One possibility the court is considering, as highlighted in the AIIMS email, is to instruct the doctors to cease the heartbeat.
The Court does not want to give a directive like this for the reasons stated in the paragraph before. The petitioner also did not want the Court to issue such a direction. She conveyed this information to the court while the hearing was taking place. Without an intervention to halt the beating heart, the fetus that is capable of surviving outside the womb would be at a considerable chance of enduring lasting bodily and cognitive impairments. The reports presented by the Medical Board stand on their own.
Due to these factors, the court denies the request for a medical abortion.
DEFECTS IN LAW
In the matter of X vs. Union of India the court has considered the pregnant woman and her unborn child, using its authority under article 142 of the constitution. The ruling has had an influence on the legal system by denying the option for the expectant woman to end the pregnancy and by assigning custody of the child to the Indian government.
INFERENCE
The ongoing discussion about a woman’s right to end a pregnancy is split between pro-life and pro-choice groups.
The present situation involves a splendid decision appropriately issued by the esteemed highest court by clarifying the law concerning the specified issue. Dr DJ Chandrachaud Chief Justice, J B Pardiwala & Manoj Misra JJ, effectively rendered the judgment addressing a highly sensitive issue. The three-member panel has addressed the matter in a practical and feasible way. The Supreme Court deliberated extensively before delivering its verdict.
According to the writer, the present decision will have a significant influence in the coming days.
For these reasons, the court denies the request for the abortion.
~Submitted by:-
Leevanshiqa
3rd year B.A.LL.B (Hons) Student,
Kalinga University, Raipur