'What's happening in Guj HC' asks SC; allows rape survivor to terminate pregnancy

The Supreme Court on Monday once again criticised the Gujarat High Court over its manner of dealing with a rape survivor's plea for termination of her pregnancy.

The top court also came down heavily upon the High Court for suggesting to explore the possibility of the woman bearing the child, saying such unjust condition was against the "constitutional philosophy".

A bench of Justices B V Nagarathna and Ujjal Bhuyan took exception to the High Court's single judge's clarification order issued on August 19 in the matter, just after the top court assembled on Saturday and directed for the 25-year-old woman's re-examination by a medical board at Bharuch.

"We do not appreciate High Court's counterblast to Supreme Court's orders. What is happening in High Court of Gujarat? Do judges reply like this to superior court's order? We do not appreciate this", the bench said. 

The top court questioned the need for the High Court to act "suo motu" and pass an order on August 19."There is no need of any judge of any court to justify their order," the bench said.

The bench was told by the woman's counsel that the High Court sought to justify its order of adjournment was granted by saying it was to enable the counsel to get instructions from the woman if she was willing to give the child to the State's facility.

Senior Advocate Sanjay Parikh, appeared for the petitioner, submitted that that the same HC judge had invoked Manusmriti n another case related to pregnancy of a minor rape survivor.

The bench said the High Court could not have imposed an unjust condition on a rape survivor, forcing her to bear the child."The view taken, I'm sorry to say, is against constitutional philosophy? How can you perpetuate unjust condition and force the rape survivor to undergo pregnancy," the bench said.

Solicitor General Tushar Mehta asked the bench to close the matter as "some misunderstanding" might have crept in. He said the HC sought to rectify some clerical error.

The bench, on this, said, "How can we ignore? No judge can counterblast Supreme Court's order." 

Mehta asked the bench not to make any adverse comment as  "He is a good judge. Comments can be discouraging". The bench then said that the comments are not against any particular judge but on the manner in which the manner was dealt with.

With regard to the woman's plea, the bench took into record the medical report and allowed her to terminate her nearly 28-week pregnancy by asking her to visit the hospital on Tuesday for undergoing the process.

In its order, the bench said pregnancy in a marriage is an occasion for joy, but outside of it, particularly after sexual assault, it is injurious to the mental health of a woman.

The court also directed if the foetus is found to be alive, the hospital is to give all facilities including incubation to ensure it survives.

Subsequently, the state can ensure for adoption in accordance with law.In its order, the bench said we refrain from saying anything on the HC order passed on August 19.

On Saturday, the top court had pulled up the High Court for deferring a plea for termination of pregnancy of a rape victim for 12 days, saying such cases should be dealt with some sense of urgency not with lackadaisical attitude.