On Monday, a bench of justices BV Nagarathna and Ujjal Bhuyan allowed the termination of pregnancy after the latest medical report said a safe abortion was possible. At the same time, it pulled up the Gujarat high court for passing an order on Saturday in the case, which it said, appeared to be a “counterblast” to the order issued by the Supreme Court.

“We don’t appreciate this. We don’t appreciate the high court passing an order which is like a counterblast to the order passed by this court. What is happening in the high court of Gujarat? Do judges retort like this to the judges of the superior court?” the bench asked Gujarat government’s standing counsel Swati Ghidiyal.

Ghidiyal brought to the notice of the bench an order passed by Gujarat high court judge Samir J Dave on August 19 – hours after the apex court entertained the appeal against the August 17 order of the same judge rejecting the woman’s plea citing the advanced pregnancy of 27 weeks. In the later order, the judge gave reasons as to why he turned down the request of the 25-year-old woman, adding she was duly apprised of the policies prevailing in the state of Gujarat regarding children born out of sexual assault.

“Where was the need for the learned single judge to pass this order on August 19 after he had already rejected her plea on August 17? How can the high court take this up suo motu? No court in India can retort to an order passed by the Supreme Court... Judges don’t have to justify their orders,” said the bench.

It added that the view taken by the high court judge is against constitutional ethos. “How can you perpetuate an unjust condition against a victim and force her to undergo full pregnancy? This is contrary to the view taken by this court... Rape is itself such a traumatic incident that perpetuation of that trauma cannot be allowed.”

At this juncture, solicitor general Tushar Mehta also showed up to represent the state government and requested the bench not to use harsh words against the high court judge for passing the August 19 order.

Responding, the bench said: “How can we ignore this? Your own counsel has brought this order to our notice...No judge can pass an order as a counterblast to the order of the Supreme Court.”

Appearing for the survivor, senior counsel Sanjay Parikh pointed out that the same high court judge, last month invoked Manusmriti while observing that earlier it was normal for girls to get married and deliver a child before the age of 17. The observation was made in connection with a plea seeking termination of an over seven-month-old fetus of a minor rape survivor, Parikh complained.

In its final order, the bench allowed the woman to undergo termination of pregnancy by Tuesday, noting that pregnancy in a marriage is an occasion for joy for the family but pregnancy outside marriage, particularly after sexual assault, is seriously injurious to the physical and mental health of the victim.

It added that there has been a bundle of Supreme Court judgments in the last two decades highlighting the significance of a woman’s reproductive choices and a sacrosanct right to her bodily integrity. The court lamented that the Gujarat high court had ignored the catena of judgments on this point and allowed the woman’s plea.

The court directed doctors to preserve the evidence for the purpose of DNA identification in the ensuing rape trial, saying evidence shall be made available to the investigating agency by the hospital in Gujarat where the abortion will be carried out.

After S-G Mehta repeatedly requested the bench not to pass strictures against the Gujarat high court judge, the bench recorded in its order: “We restrain ourselves from saying anything on the order passed by the single judge of the high court on August 19 pursuant to the order passed by us on the same day.”

In its special sitting on Saturday, the bench had said that there must be a “sense of urgency” instead of a “lackadaisical attitude” in attending to the cases of termination of pregnancy, crticising the Gujarat high court for not realising the valuable time lost in the present case.

“Valuable time has been lost between August 11 when the medical report was placed before the high court and its order stating that the matter will be listed next on August 23...12 valuable days have been lost by the high court by postponing this case. In such cases there must be a sense of urgency and not a lackadaisical attitude...adjourning it like a normal case.”

The court castigated the high court after noticing that the though the medical report dated August 10 supported the victim’s plea for a safe abortion, the high court adjourned the case for August 23 when it took up the report on August 11. Later, on August 17, the high court rejected her plea without specifying the reasons or releasing its order.

At this, the bench noted that not only the high court lost sight of that fact that a delay of each day would be crucial in a case of advanced stage of pregnancy but also that there was no order released by the high court to corroborate the reasons behind rejection of the plea by the 25-year-old woman.

The Medical Termination of Pregnancy (MTP) Act, as amended in 2021, allows abortions up to 24 weeks for rape survivors. The law sanctions termination beyond 24 weeks only in case of substantial foetal abnormalities.

However, a constitutional court can invoke its extraordinary powers to sanction termination of pregnancy beyond 24 weeks in appropriate cases.

In July 2022, the Delhi high court allowed a 13-year-old rape survivor to undergo medical termination of pregnancy after 26 weeks, saying her misery and suffering would stand compounded if she was forced to bear the mantle of motherhood at a tender age. In August 2022, the Kerala high court also permitted the termination of the 28-week pregnancy of a minor rape survivor following the recommendation of a medical board.