Source: Hindustan Times

Why in News?

The Supreme Court (SC) has criticized the Gujarat High Court (HC) for the manner in which it passed an order in a rape survivor's plea seeking an abortion in the matter of XYZ v. State of Gujarat.

Background

• The question posed before the SC in an appeal was whether to give birth to an unwanted child or not after being unsuccessful before the Gujarat High Court.
• A First Information Report (FIR) dated 02.08.2023 was filed against the accused under Section 376(2)(n) of the Indian Penal Code, 1860 (IPC) for having sexual intercourse with the victim on a false pretext of marriage.
• On realizing that she was 25 weeks pregnant, she filed the Writ petition before the High Court of Gujarat, under Article 226 of the Constitution of India, 1950 (COI) read with Section 482 of Criminal Procedure Code, 1973(CrPC), and Section 3 of the Medical Termination of Pregnancy Act, 1971 (MTP Act) seeking a direction for termination of her pregnancy.
• The High Court issued a direction to the Medical Superintendent to submit a report regarding the health of the appellant as well as the status of her pregnancy and on receipt of the said report, it was taken on record on 11.08.2023.
• The High Court adjourned the matter without assigning any reason on 23.08.2023 and thereafter rejected the petition on 17.08.2023.
• The appeal was made to the SC and the order of dismissal was not uploaded even until August 19, at the time the matter came before the Apex Court.
• Against this backdrop, the SC had sought an explanation from the HC registry, after observing that 'valuable time' had been lost due to the High Court's approach.
• After the Top Court took up the matter and another order was passed by the HC in the same matter.
• Gujarat HC seemingly attempted to clarify that the order of adjournment was granted in order to enable the counsel to get instructions from the rape survivor.

Court’s Observation

The Court took the step of High Court of Gujarat of passing clarificatory order subsequently seriously, Justice BV Nagarathna said that: "We do not appreciate the high court's counterblast to the SC's orders. What is happening in the High Court of Gujarat? Do judges reply like this to a superior court's order? We do not appreciate this. These kinds of attempts are being made by high court judges to circumvent something we have said, like this. There is no need for any judge of the high court to justify its order."

Legal Provisions

Indian Penal Code, 1860

The FIR in the present matter pertains to Section 376(2)(n).

Section 376 - Punishment for Rape —

(1) Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine.

(2) Whoever, —

(n) commits rape repeatedly on the same woman, shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine.

Criminal Procedure Code, 1973(CrPC)

Section 482 - Saving of Inherent Powers of High Court —

Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

Constitution of India, 1950

The High Court is granted power of writ jurisdiction.

Article 226 - Power of High Courts to Issue Certain Writs. —

(1) Notwithstanding anything in article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.

Medical Termination of Pregnancy Act, 1971(MTP Act)

Conditions for termination of pregnancy are provided by Section 3 of the Act.

Section 3 - When pregnancies may be terminated by registered medical practitioners

(1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act.

(2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner, —

(a) where the length of the pregnancy does not exceed twenty weeks, if such medical practitioner is, or

(b) where the length of the pregnancy exceeds twenty weeks but does not exceed twenty-four weeks in case of such category of woman as may be prescribed by rules made under this Act, if not less than two registered medical practitioners are, of the opinion, formed in good faith, that—

(i) The continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or

(ii) There is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities to be seriously handicapped.

Explanation 1 - Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.

Explanation 2- Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be resumed to constitute a grave injury to the mental health of the pregnant woman.

(2A) The norms for the registered medical practitioner whose opinion is required for termination of pregnancy at different gestational age shall be such as may be prescribed by rules made under this Act.

(2B) The provisions of sub-section (2) relating to the length of the pregnancy shall not apply to the termination of pregnancy by the medical practitioner where such termination is necessitated by the diagnosis of any of the substantial foetal abnormalities diagnosed by a Medical Board.

(2C) Every State Government or Union territory, as the case may be, shall, by notification in the Official Gazette, constitute a Board to be called a Medical Board for the purposes of this Act to exercise such powers and functions as may be prescribed by rules made under this Act.

(2D) The Medical Board shall consist of the following, namely: —

(a) a Gynaecologist;

(b) a Paediatrician;

(c) a Radiologist or Sonologist; and

(d) such other number of members as may be notified in the Official Gazette by the State Government or Union Territory, as the case may be.

(3) In determining whether the continuance of a pregnancy would involve such risk of injury to the health as is mentioned in sub-section (2) account may be taken of the pregnant women actual or reasonably foreseeable environment.

(4) (a) No pregnancy of a woman, who has not attained the age of eighteen years, or, who, having attained the age of eighteen years, is a lunatic, shall be terminated except with the consent in writing of her guardian.
(b) Save as otherwise provided in clause (a), No pregnancy shall be terminated except with the consent of the pregnant woman.