Suchita Srivastava and Anr Vs Chandigarh Administration

 

Suchita Srivastava and Anr Vs Chandigarh Administration (2009)

Civil Appeal Jurisdiction

Appellants: Suchita Srivastava & Anr

Respondent: Chandigarh Administration

Decided on: 28 August 2009

Statues referred:

à  Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999

à  Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995

à  The Constitution of India, 1950: Article 14, Article 21

à  The Indian Penal Code, 1860: Section 120B, Section 376

à  Medical Termination of Pregnancy Act, 1971: Section 2(b), section 3, section 3(4) (a), section 3(4) (b)

Subject: Human Rights, Women & Children

Bench: K.G. Balakrishnan, P. Sathasivam, Balbir Singh Chauhan

Facts:

An orphaned woman living in a government-run welfare facility in Chandigarh with a mental capacity of just nine was raped and subsequently became pregnant while she was living in the facility. Staff at the agency discovered her pregnancy when she was nine weeks pregnant. Based on this finding, the accused Chandigarh government instituted criminal proceedings under Sections 376 and 120B of the Indian Penal Code of 1860 and established a medical board to assess the woman's mental condition. The medical board considered the woman to be intellectually disabled, with "mild intellectual disability". Another medical committee of defendants held that the woman's pregnancy should be terminated. The accused then filed a petition with the Punjab and Haryana High Courts for permission to terminate the pregnancy.

The High Court established an independent expert body of medical experts and judges to investigate the facts of the case and provide the High Court with an opinion on the "best interests" of the women involved. The expert body noted that even if the victim was unable to comprehend or understand the consequences of having a child for herself and her child's future, her condition did not necessarily warrant termination of the pregnancy, and her mental retardation did not indicate an abnormal risk during pregnancy. It was also noted that she was less likely to raise children without adequate social support. The expert body further concluded that she had no apparent emotion for the baby conceived as a result of rape. In addition, the expert body found that the woman wanted to continue the pregnancy. Despite this, the High Court granted the Respondent the termination of the pregnancy.The applicant appealed the High Court's decision to the Supreme Court.

At the time of the appeal, the applicant was 19 weeks pregnant and the legal limit in India permitted abortion up to 20 weeks gestation under Section 3 of the MTP- law . Section 3 of the MTP Act allows access to abortion under certain conditions, including the woman's consent, the stage of pregnancy and the woman's mental, physical and foetal health

Issues:

Ø  Whether it was correct on part of HC to direct termination of pregnancy without consent of woman in question?

Ø  ‘Parens Patriae’ jurisdiction – Whether termination of pregnancy is in ‘best interests’ of victim?

Appellant’s Contentions:

The right of women to make reproductive choices is also a dimension of "individual freedom" as understood by art. 21 of the Constitution of India. The consent of the pregnant woman is an essential prerequisite for carrying out the termination of pregnancy. This position is stated unambiguously in S. 3 (4) (b) of the MTP Act, 1971. An ossification test revealed that the victim's physical age is around 19-20 years.  This proves that she is not a minor. Her condition is described as a "mild mental retardation" condition that is clearly different from the "mentally disabled" condition. The 2002 revision of the MTP Act shows that the legislative intent was to narrow down the classes of people whose parents could make decisions about abortion. Honorary Court decisions should be guided solely by the interests of the victim, not the interests of other stakeholders such as parents or society in general.

The victim has expressed her willingness to endure the pregnancy to its fullest extent and to give birth to a child. Any dilution of the consent requirement under Section 3(4)(b) of the MTP Act is open to abuse in a society where sex-selective abortion is a pervasive social ill.

Respondent’s Contentions:

Expert groups have found that she has a limited understanding of the idea of pregnancy and may not be fully prepared to take on her mother's responsibilities. Concerns have been expressed about the victim's psychic ability to cope with the demand to bring the pregnancy to maturity, the act of giving birth to a child, and subsequent childcare. Victims have limited understanding of sexual activity and have been repeatedly emphasized in court to do so. Do not anticipate the social stigma that can be given to a child born of rape.  In addition, medical professionals in court also need constant care and supervision not only during pregnancy but also for postnatal childbirth and childcare purposes.

Maternal responsibilities carry some physical, emotional, and social burden, and it was appropriate for medical professionals to determine if the victim could handle them. Respondent's lawyer also warned us that even if the victim told a member of a professional body that she was ready to have a child, she also turned out to be very suggestive.Her opinion may change in the future.

High Court judgement:

The intention was that the findings of the Expert Body would enable the High Court to establish the "best interests" of the woman in question. The High Court noted some statutory provisions of the Persons with Disabilities (equal opportunities, protection of rights and full participation) Act 1995 and the National Social Security Fund for Persons with Autism, Cerebral Palsy, Mental Deficiency and Multiple Disability Act, in which the distinction between mental illness and mental retardation had disappeared. The High Court referred to the doctrine of "Parens Patriae", exercising its judicial jurisdiction to go beyond a literal interpretation of the law and adopt a targeted approach. The same doctrine was used to conclude that abortion would serve the victim's "best interests" in the present case, even if she did not consent to it.

Judgement by Supreme Court:

The MTP law clearly respects the personal autonomy of persons with intellectual disabilities who are over the age of majority. We have pointed out that it is necessary to look beyond social prejudice in order to objectively decide whether a person in a condition of mild intellectual disability can assume parental responsibility. Continued pregnancy poses no serious threat to the victim's physical or mental health. The Trust will consult with the Chandigarh administration and experts from the Post Graduate Institute of Medical Education and Research (PGIMER) to ensure appropriate care and monitoring. If future complaints arise regarding the same matter, the defendant may seek instructions from the Punjab and Haryana High Court.

 Mental retardation or developmental delay is measured on the basis of parameters such as intelligence quotient (IQ) and mental age (MA). It is entirely possible that it is someone who has a low I.Q. or M.A. may possess social and emotional abilities that enable him to be a good father.

Rule of Law:

The Apex Court looked beyond society's rigid view of disabled people's ability to become capable parents. This court unearthed unprecedented questions about the rights of disabled women in relation to reproductive issues. The court overturned the High Court's decision, keeping in mind the limitations set out in the MTP Act.

Conclusion:

Consent is an essential condition for performing an abortion on an adult woman not suffering from "mental illness" - There is a clear distinction between "mental illness" and "mental illness". Disability” for purposes of this Act – The wording of the Act clearly respects the personal autonomy of persons with intellectual disabilities who are over the age of the majority of a pregnancy.

In addition, it is necessary to look beyond social prejudices in order to objectively decide whether a person with a mild intellectual disability can fulfil parental responsibilities.