Suchita Srivastava and Anr Vs Chandigarh Administration (2009) 9 SCC 1

CASE BRIEF

Civil Appeal Jurisdiction

Apellants: Suchita Srivastava & Anr

Respondent: Chandigarh Administration

Decided on: 28 August 2009

Statues referred:

• Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999
• Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995
• The Constitution of India, 1950: Article 14, Article 21
• The Indian Penal Code, 1860: Section 120B, Section 376
• 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:

• The woman in question is an orphan who had been abandoned by her parents at an early age and subsequently she had been under the guardianship of the Missionaries of Charity, New Delhi. Thereafter, she had been admitted in the Government Institute for Mentally Retarded Children located in Sector 32, Chandigarh and was later on brought to the ‘Nari Niketan’ a welfare institution in Sector 26, Chandigarh.
• On 13.3.2009, she was shifted to ‘Ashreya’ – a newly established welfare institution. Both ‘Nari Niketan’ and ‘Ashreya’ are government-run institutions run by the Chandigarh Administration.
• The victim had become pregnant as a result of an alleged rape that took place while she was an inmate at a government-run welfare institution located in Chandigarh.
• After the discovery of the pregnancy, the concerned authorities had informed the Chandigarh Police who filed FIR No. 155 (dated 18.5.2009) u/ss. 376 and 120B of the Indian Penal Code at the Police Station located in Sector 26, Chandigarh.
• The Director- Principal of the GMCH thereafter constituted a three member medical board on 25.5.2009 which was headed by the Chairperson of the Department of Psychiatry in the said hospital. Their task was to evaluate the mental status of the victim and they opined that the victim’s condition was that of ‘mild mental retardation’
• The Chandigarh Administration had approached the High Court seeking approval for the termination of her pregnancy, keeping in mind that in addition to being mentally retarded she was also an orphan who did not have any parent or guardian to look after her or her prospective child.
• The High Court had the opportunity to peruse a preliminary medical opinion and chose to constitute an Expert Body consisting of medical experts and a judicial officer for the purpose of a more thorough inquiry into the facts.
• In its order dated 9.6.2009, the High Court framed a comprehensive set of questions that were to be answered by the Expert Body.
• In its order dated 17.7.2009 the High Court directed the termination of the pregnancy in spite of the Expert Body’s findings which showed that the victim had expressed her willingness to bear a child.
• Aggrieved by these orders, the appellants moved this Court and the second appellant – Ms. Tanu Bedi, Adv. appeared in person on 20.7.2009 and sought a hearing on an urgent basis because the woman in question had been pregnant for more than 19 weeks at that point of time.

Issues:

• Whether it was correct on part of HC to direct termination of pregnancy without consent of woman in question?
• ‘Parens Patriae’ jurisdiction – Whether termination of pregnancy is in ‘best interests’ of victim?

Contentions by parties

• Appellant’s contentions:

1. The victim had clearly expressed her willingness to bear a child. Her reproductive choice should be respected in spite of other factors such as the lack of understanding of the sexual act as well as apprehensions about her capacity to carry the pregnancy to its full term and the assumption of maternal responsibilities thereafter.
2. The applicable statute clearly contemplates that even a woman who is found to be ‘mentally retarded’ should give her consent for the termination of a pregnancy. The language of S. 3 of the Medical Termination of Pregnancy Act, 1971 is to be stressed upon
3. A woman’s right to make reproductive choices is also a dimension of ‘personal liberty’ as understood u/art. 21 of the Constitution of India. It is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected.
4. It was contended that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman’s right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods. Furthermore, women are also free to choose birth-control methods such as undergoing sterilisation procedures.
5. The consent of the pregnant woman is an essential requirement for proceeding with the termination of pregnancy. This position has been unambiguously stated in S. 3(4) (b) of the MTP Act, 1971. The exceptions to this rule of consent have been laid down in S. 3(4)(a) of the Act, which is that when the pregnant woman is below eighteen years of age or is a ‘mentally ill’ person, the pregnancy can be terminated if the guardian of the pregnant woman gives consent for the same. The only other exception is found in S. 5(1) of the MTP Act which permits a registered medical practitioner to proceed with a termination of pregnancy when he/she is of an opinion formed in good faith that the same is ‘immediately necessary to save the life of the pregnant woman’. It was contended that none of these exceptions were applicable to the present case.
6. The State’s claim to guardianship cannot be mechanically extended in order to make decisions about the termination of her pregnancy. An ossification test has revealed that the physical age of the victim is around 19-20 years. This conclusively shows that she is not a minor. Furthermore, her condition has been described as that of ‘mild mental retardation’ which is clearly different from the condition of a ‘mentally ill person’ as contemplated by S. 3(4) (a) of the MTP Act.
7. The 2002 amendment to the MTP Act indicates that the legislative intent was to narrow down the class of persons on behalf of whom their guardians could make decisions about the termination of pregnancy. It is apparent from the definition of the expression ‘mentally ill person’ that the same is different from that of ‘mental retardation’. A similar distinction can also be found in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
8. The MTP Act clearly lays down that obtaining the consent of the pregnant woman is indeed an essential condition for proceeding with the termination of a pregnancy. As mentioned earlier, in the facts before us the victim has not given consent for the termination of pregnancy. Dilution of this requirement of consent since the same would amount to an arbitrary and unreasonable restriction on the reproductive rights of the victim. Any dilution of the requirement of consent contemplated by S. 3(4)(b) of the MTP Act is liable to be misused in a society where sex-selective abortion is a pervasive social evil.
9. It is important to note that the Honourable Court’s decision should be guided by the interests of the victim alone and not those of other stakeholders such as guardians or society in general. It is evident that the appellant will need care and assistance which will in turn entail some costs. However, that cannot be a ground for denying the exercise of reproductive rights.
10. The victim has been described as a person suffering from ‘mild mental retardation’. This does not mean that she is entirely incapable of making decisions for herself. The findings recorded by the Expert Body indicate that her mental age is close to that of a nine-year old child and that she is capable of learning through rote-memorisation and imitation. Even the preliminary medical opinion indicated that she had learnt to perform basic bodily functions and was capable of simple communications. In light of these findings, it is the ‘Best Interests’ test alone which should govern the inquiry in the present case.
11. The victim has expressed her willingness to carry the pregnancy till its full term and bear a child. As per the findings, the victim is physically capable of continuing with the pregnancy and the possible risks to her physical health are similar to those of any other expecting mother. There is also no indication that the prospective child may be born with any congenital defects.

• Respondent’s contentions:

1. The Expert body has found that she has a limited understanding of the idea of pregnancy and may not be fully prepared for assuming the responsibilities of a mother.
2. Concerns have been expressed about the victim’s mental capacity to cope with the demands of carrying the pregnancy to its full term, the act of delivering a child and subsequent childcare.
3. It was repeatedly stressed before the court that the victim has a limited understanding of the sexual act and perhaps does not anticipate the social stigma that may be attached to a child which will be born on account of an act of rape.
4. Furthermore, the medical experts who appeared before the court also voiced the concern that the victim will need constant care and supervision throughout the pregnancy as well as for the purposes of delivery and childcare after birth. Maternal responsibilities do entail a certain degree of physical, emotional and social burdens and it was proper for the medical experts to gauge whether the victim is capable of handling them.
5. The counsel for the respondent also alerted us to the possibility that even though the victim had told the members of the Expert Body that she was willing to bear the child, her opinion may change in the future since she was also found to be highly suggestible.

High Court judgement:

1. The High Court stressed on the need for ensuring that this Expert Body would be independent from the administrative control or any form of influence by the Chandigarh Administration. The intention was that the Expert Body’s findings would enable the High Court to ascertain the ‘best interests’ of the woman in question. In pursuance of these directions, the Director of the Post Graduate Institute of Medical Education and Research (PGIMER), Chandigarh constituted an expert body.
2. The High Court had also directed Smt. Raj Rahul Garg, Additional District and Sessions Judge, Chandigarh to act as the member-cum-coordinator of the Expert Body.
3. Besides placing substantial reliance on the preliminary medical opinions presented before it, the High Court has noted some statutory provisions in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 as well as The National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 where the distinction between ‘mental illness’ and ‘mental retardation’ has been collapsed. The same has been done for the purpose of providing affirmative action in public employment and education as well as for the purpose of implementing anti- discrimination measures. The High Court has also taken note of provisions in the IPC which lay down strong criminal law remedies that can be sought in cases involving the sexual assault of ‘mentally ill’ and ‘mentally retarded’ persons.
4. The High Court points to the blurring of these distinctions and uses this to support its conclusion that ‘mentally ill’ persons and those suffering from ‘mental retardation’ ought to be treated similarly under the MTP Act, 1971.
5. In the impugned orders, the High Court has in fact agreed with the proposition that a literal reading of S. 3 of the MTP Act would lead to the conclusion that a mentally retarded woman should give her consent in order to proceed with the termination of a pregnancy. However, the High Court has invoked the doctrine of ‘Parens Patriae’ while exercising its writ jurisdiction to go beyond the literal interpretation of the statute and adopt a purposive approach. The same doctrine has been used to arrive at the conclusion that the termination of pregnancy would serve the ‘best interests’ of the victim in the present case even though she has not given her consent for the same. We are unable to accept that line of reasoning.’Parens Patriae’ jurisdiction for the purpose of making reproductive decisions on behalf of mentally retarded persons.

Judgement by Supreme Court:

1. With regard to the facts that led to the present proceeding, the question of whether or not the victim was capable of consenting to the sexual activity that resulted in her pregnancy will be addressed in the criminal proceedings before a trial court.
2. An FIR has already been filed in the said matter and two security-guards from Nari Niketan are being investigated for their role in the alleged rape.
3. Our conclusion is that the victim’s pregnancy cannot be terminated without her consent and proceeding with the same would not have served her ‘best interests’. In our considered opinion, the language of the MTP Act clearly respects the personal autonomy of mentally retarded persons who are above the age of majority.
4. Since none of the other statutory conditions have been met in this case, it is amply clear that we cannot permit a dilution of the requirement of consent for proceeding with a termination of pregnancy. We have also reasoned that proceeding with an abortion at such a late stage (19-20 weeks of gestation period) poses significant risks to the physical health of the victim. We have urged the need to look beyond social prejudices in order to objectively decide whether a person who is in a condition of mild mental retardation can perform parental responsibilities.
5. The findings recorded by the Expert body which had examined the victim indicate that the continuation of the pregnancy does not pose any grave risk to the physical or mental health of the victim and that there is no indication that the prospective child is likely to suffer from a congenital disorder.
6. We direct that the best medical facilities be made available so as to ensure proper care and supervision during the period of pregnancy as well as for post-natal care. The Chairperson of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities (constituted under the similarly named 1999 Act) has stated in an affidavit that the said Trust is prepared to look after the interests of the woman in question which will include assistance with childcare.
7. In the said affidavit, it has been stated that this Trust will consult the Chandigarh Administration as well as experts from the Post Graduate Institute of Medical Education and Research (PGIMER) in order to ensure proper care and supervision. If any grievances arise with respect to the same subject matter in the future, the respondent can seek directions from the High Court of Punjab and Haryana under its writ jurisdiction.
8. Taken to their logical conclusion, reproductive rights include a woman’s entitlement to carry a pregnancy to its full term, to give birth and to subsequently raise children. However, in the case of pregnant women there is also a ‘compelling state interest’ in protecting the life of the prospective child. Therefore, the termination of a pregnancy is only permitted when the conditions specified in the applicable statute have been fulfilled. Hence, the provisions of the MTP Act, 1971 can also be viewed as reasonable restrictions that have been placed on the exercise of reproductive choices.
9. Performing an abortion at such a late-stage could have endangered the victims’ physical health and the same could have also caused further mental anguish to the victim since she had not consented to such a procedure. We must also mention that the High Court in its earlier order had already expressed its preference for the termination of the victim’s pregnancy even as it proceeded to frame a set of questions that were to be answered by a Expert Body which was appointed at the instance of the High Court itself. In such a scenario, it would have been more appropriate for the High Court to express its inclination only after it had considered the findings of the Expert Body.
10. It is also pertinent to note that a condition of ‘mental retardation’ or developmental delay is gauged on the basis of parameters such as Intelligence Quotient (I.Q.) and Mental Age (M.A.) which mostly relate to academic abilities. It is quite possible that a person with a low I.Q. or M.A. may possess the social and emotional capacities that will enable him or her to be a good parent. Hence, it is important to evaluate each case in a thorough manner with due weightage being given to medical opinion for deciding whether a mentally retarded person is capable of performing parental responsibilities.
11. Our conclusions in this case are strengthened by some norms developed in the realm of international law. For instance one can refer to the principles contained in the United Nations Declaration on the Rights of Mentally Retarded Persons, 1971 [G.A. Res. 2856 (XXVI) of 20 December, 1971] one of which have been reproduced below:

“7) Whenever mentally retarded persons are unable, because of the severity of their handicap, to exercise all their rights in a meaningful way or it should become necessary to restrict or deny some or all of these rights, the procedure used for that restriction or denial of rights must contain proper legal safeguards against every form of abuse. This procedure must be based on an evaluation of the social capability of the mentally retarded person by qualified experts and must be subject to periodic review and to the right of appeal to higher authorities.”

1. Special emphasis should be placed on Principle 7 (cited above) which prescribes that a fair procedure should be used for the ‘restriction or denial’ of the rights guaranteed to mentally retarded persons, which should ordinarily be the same as those given to other human beings. In respecting the personal autonomy of mentally retarded persons with regard to the reproductive choice of continuing or terminating a pregnancy, the MTP Act lays down such a procedure. We must also bear in mind that India has ratified the Convention on the Rights of Persons with Disabilities (CRPD) on October 1, 2007 and the contents of the same are binding on our legal system.
2. We have already stressed that persons who are found to be in borderline, mild and moderate forms of mental retardation are capable of living in normal social conditions and do not need the intensive supervision of an institutionalised environment.
3. The responsibility of course lies with the State and fact-situations such as those in the present case should alert all of us to the alarming need for improving the administration of the government-run welfare institutions.
4. It would also be proper to emphasize that persons who are found to be in a condition of borderline, mild or moderate mental retardation are capable of being good parents. Empirical studies have conclusively disproved the eugenics theory that mental defects are likely to be passed on to the next generation.
5. Of special importance is the fact that at the time of hearing, the woman had already been pregnant for more than 19 weeks and there is a medico-legal consensus that a late-term abortion can endanger the health of the woman who undergoes the same.

Rule of law

The Apex court looked beyond the rigid perspective of the society regarding ability of retarded people becoming capable parents. This court dug out unprecedented questions on the rights of retarded women regarding reproductive aspects. The court overruled High Court’s decision while keeping in mind the restrictions laid down in MTP Act.

Conclusion:

Consent is an essential condition for performing an abortion on a woman who has attained age of majority and does not suffer from any ‘mental illness’ – There is a clear distinction between ‘mental illness’ and ‘mental retardation’ for purpose of this statute – Language of Act clearly respects personal autonomy of mentally retarded persons who are above age of majority – Applicable statute clearly contemplates that even a woman who is found to be ‘mentally retarded’ should give her consent for termination of a pregnancy

Moreover, there is a need to look beyond social prejudices in order to objectively decide whether a person who is in a condition of mild mental retardation can perform parental responsibilities