Courts can’t have lackadaisical attitude in abortion cases: Supreme Court

There must be a “sense of urgency” instead of a “lackadaisical attitude” in attending to the cases of termination of pregnancy, the Supreme Court said on Saturday as it held a special sitting on a holiday to hear a petition by a rape survivor seeking abortion of her fetus of over 27 weeks.

Criticising the Gujarat high court for not realising the valuable time lost in such cases, the bench led by justice BV Nagarathna called for a fresh medical report of the victim by Sunday and fixed the matter for a hearing as the first case on Monday.

“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,” said the bench, which also included justice Ujjal Bhuyan.

The court castigated the high court after noticing that the though the medical report dated August 10 supported the victim’s plea for 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 “...not only had the high court lost sight of the fact that a delay of each day would be crucial in a case of the advanced stage of pregnancy but also that there was no order released by the high court to corroborate the reasons behind the rejection of the plea by the 25-year-old woman”.

It took note of the submissions made by advocate Shashank Singh on petitioner’s behalf and directed the secretary general of the Supreme Court to enquire from the registrar general of the Gujarat high court about uploading the order on the court website. Singh submitted that the woman had approached the high court first on August 7, but the plea was dismissed without a speaking order on August 17.

At this, the bench called for a fresh medical report from a government hospital in Gujarat on the current medical condition of the victim and the feasibility of safe abortion.

“Let the latest medical report be submitted by tomorrow, 6pm. The same shall be put up before this court on Monday. List this case on Monday as the first item. The counsel for the state will take necessary instructions in the meantime,” it recorded.

Advocate Swati Ghidiyal appeared on behalf of the Gujarat government and favoured a fresh medical report, considering the woman is just a few days away from completing 28 weeks of pregnancy.

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.