By Dr Swati Jindal Garg
American author Bell Hooks said: “Many of us were the unplanned children of talented, creative women whose lives had been changed by unplanned and unwanted pregnancies. We witnessed their bitterness, their rage, their disappointment with their lot in life and we were clear that there could be no genuine sexual liberation for women and men without better, safer contraceptives, without the right to a safe, legal abortion.”
There has been a long standing debate over the right to abortion. Recently, the Gujarat High Court heard a plea of a minor rape survivor for termination of her 29-week pregnancy. It observed that girls in the past used to have their first child by the age of 17 and that it wasn’t inclined to allow the termination of a minor girl’s pregnancy if both the mother and foetus were found to be in good health.
In oral remarks made during the hearing, Justice Samir Dave said that it was very difficult for the Court to pronounce an order allowing the girl to “kill the baby” unless there were serious problems ailing her or the foetus. Justice Dave further said: “Normally, a pregnancy in first-time intercourse and a girl not disclosing for seven months, that story is very… The boy is 23 (years old) and the foetus is more than seven months… If the foetus remains alive (following medical termination) what will you do? Who will take care?… I cannot permit you to kill the baby. No one can… If any serious ailment in the foetus or the girl, the court can certainly consider. If both are normal, it would be very difficult for the court to pass such a type of order….”
The case revolves around a girl approaching 17 years and was filed through her father. The judgment is expected on August 16 and has already created unease amongst activists.
The Court has instructed the medical superintendent of Rajkot Civil Hospital to conduct an urgent medical examination of the girl, including an ossification test, to assess her health condition. The controversy started when the petitioner’s advocate clarified that the main concern was with the girl’s age and the potential challenges that were associated with underage pregnancy.
The advocate further argued: “Had she been 20 to 20-plus, it would have been a different scenario.” Justice Dave replied: “Ask your mother or great-grandmother… 14-15 years is the maximum age… By 17 years, they would have already had their first child. And girls are more mature than boys… 4-5 months here or there to 18 years doesn’t matter. You haven’t read it, but do read Manusmriti.”
These remarks left many shocked. While courts have allowed termination of pregnancy of minor rape victims, they often face a long ordeal to get the “unwanted pregnancy” terminated. The victims, as per law, have to first approach doctors and hospitals and following their refusal are then constrained to move courts for relief. While the Medical Termination of Pregnancy Act (MTP Act) allows abortions until 20 weeks (24 weeks in certain cases as per the latest amendment), rape victims continue to file petitions seeking termination of their pregnancy as doctors refuse to allow abortion. This, even after the Ministry of Health and Family Welfare has passed guidelines and protocols for medico-legal care of victims of sexual violence. These mandate doctors to provide immediate treatment for them, including emergency contraception and abortion. The reality, however, is far different and rape survivors who become pregnant face many barriers in accessing abortion services and have to move to courts. There too, they may or may not get the desired relief. In cases where relief is not given, such survivors become bitter and face a bleak future ahead.
Records show that between 2016 and 2019, 40 petitions seeking termination of pregnancies under 20 weeks were filed in different courts after doctors refused to perform the abortion. Most of the petitions were filed by rape victims.
The Supreme Court has already said: “State must ensure reproduction and safe sex is disseminated to all segments of the public to avoid unwanted pregnancies. The impact of continuing unwanted pregnancy on a woman has to take into account the social realities.” In the light of this stricture from the top court, the remark of the Gujarat High Court judge is shocking.
Typically, in such cases, constitutional courts that possess broader authority and have the ability to allow the termination of pregnancy beyond the standard 24-week limit, may grant termination after advice from a medical board. The board assesses whether the foetus is experiencing any disabilities and determines whether it would be medically safe to abort.
Taking the assessment into consideration, the constitutional court may permit abortion keeping in mind the newly added Section 3(2)(b) of The Medical Termination of Pregnancy Act 2021, which states: “Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner –
“(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 any serious physical or mental abnormality.
“Explanation 2.—For the purposes of clauses (a) and (b), where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by the pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.”
Fundamental rights and constitutional morality are given precedence over religious morality in the country. There is no doubt that the Manusmriti cannot be used to interpret rights, and more importantly, the constitutional rights of women in India.
Manusmriti says of a woman: “The father guards her during virginity, the husband guards her in youth, the sons guard her in old age; the woman is never fit for independence.” Applying this in today’s day and age is not only baffling, but a direct affront to Article 14 of the Constitution that grants equality between men and women.
Chief Justice DY Chandrachud in the Sabarimala case said: “Reading Dr Ambedkar compels us to look at the other side of independence. Besides the struggle for independence from British rule, there was another struggle that was going on since centuries and which still continues. That struggle has been for social emancipation. It has been the struggle for the replacement of an unequal social order, it has been a fight for undoing historical injustices and for righting fundamental wrongs with fundamental rights. The Constitution of India is the end product of both these struggles.”
In the light of all these judgments, it is unreasonable to force a woman to carry a pregnancy, especially one that has been the result of rape. Worse, to refer to Manusmriti as a source of rights of women is not only an affront to the Constitution, but all those who have attempted to bring equality between men and women.
In fact, it would not be wrong to suggest that the Constitution with its forward thinking is a feminist document. The chief justice himself has said that one should incorporate “the feminist thinking in the way you deal with law….” The Gujarat judge’s remarks while imparting justice seem to take the country back by a few decades.
—The writer is an Advocate-on-Record practicing in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi