By – Kaifi Khan
In The Supreme Court Of India
|NAME OF THE CASE
|Suchita Srivastava & Anr v/s Chandigarh Administration
|(2009) 14 SCR 989, (2009) 9 SCC 1
|The Supreme Court Of India
|DATE OF THE CASE
|28th August 2009
|Suchita Srivastava & Anr.
|K.G. Balakrishnan, P. Sathasivam, B.S. Chauhan
|The Constitution of India,1950 The Indian Penal Code,1860
|Article 14 and 21 of the Indian Constitution, Sections 120B and 376 of the IPC.
Suchita Srivastava & Anr. v/s Chandigarh Administration was heard by a three-judge Supreme Court panel, in which an orphaned woman with mental retardation got impregnated as a result of rape. Without the woman’s agreement, the Punjab & Haryana High Court concluded that the pregnancy should be aborted under Section 3 of the Medical Termination of Pregnancy Act, 1971 (MTP Act) because she lacked the capacity to care for a kid and had no parent or guardian to look after her. The Supreme Court overturned the Punjab and Haryana High Court’s decision, ruling that the right to reproductive choice is derived from Article 21 of the Constitution’s right to liberty. It was stated that robbing a woman of her right to choose her own body would be an infringement of her right to privacy. It also made a distinction between mental illness and mental retardation, concluding that a woman’s mental retardation did not deprive her of her right to choose her reproductive options. As a result, it was determined that a pregnancy abortion without her agreement could not be authorised.
There was no documentation or evidence of abortion being legal or illegal in India until the British colonial rule, which made it illegal. Abortion was considered a crime under the Indian Penal Code of 1860 and was only permitted to save the life of the pregnant woman. However, this severe abortion regulation was frequently broken, and women turned to unskilled and ill-advised procedures, as well as unqualified medical practitioners, for abortion, resulting in a high maternal mortality rate.
The Medical Termination of Pregnancy Act, 1971 (hereafter referred to as the ‘MTP Act’) became law in India on April 1, 1972. The MTP Act does not use the term ‘abortion’; instead, it uses the term “medical termination of pregnancy”. This Act was largely based on the United Kingdom’s Abortion Act of 1967. It went into effect on April 1, 1972, and clearly outlined the circumstances under which a pregnancy could be terminated, as well as the individuals who could perform such terminations. “For the termination of certain pregnancies by registered medical practitioners and matters associated therewith or ancillary thereto,” according to the Act. The statute was passed in order to liberalise abortions by allowing them under specific circumstances.
Courts have ruled on the reproductive rights of disabled women on several occasions, particularly in the recent decade. The Rights of Persons with Disabilities Act of 2016 (RPD Act) was passed by Parliament, guaranteeing a variety of rights to people with disabilities, including reproductive autonomy. No pregnancy may be terminated without the pregnant woman’s agreement, according to Section 3(4)(b) of the Medical Termination of Pregnancy Act, 1971 (MTP Act). The RPD Act emphasises this point in the context of women with disabilities. Performing, administering, or directing a medical operation on a woman with a disability that leads to or is likely to lead to the termination of pregnancy without her express agreement is illegal under Section 92(f) of the RPD Act. It exempts treatments in which a woman’s pregnancy is terminated medically in grave situations of incapacity, with the approval of the woman’s guardian and on the advice of a certified medical practitioner. This exemption is in accordance with MTP Act Section 3(4)(a), which states that a mentally ill woman over the age of 18 cannot have her pregnancy terminated without her guardian’s written consent. A “mentally ill” individual, according to the MTP Act, is a “person in need of treatment due to any mental illness other than mental retardation.” This chapter examines cases that investigate the reproductive autonomy of women with intellectual disabilities within the perspective of this regulatory framework.
The Supreme Court overturned the High Court’s decision to terminate the pregnancy of a woman with “moderate mental impairment” (intellectual disability) without her consent in Suchita Srivastava v. Chandigarh Administration. The Court found that the woman was not “mentally ill” and had reached the age of majority, and affirmed her ability to make reproductive decisions under Article 21 of the Indian Constitution. In interpreting Section 3 of the MTP Act in relation to a woman’s consent to terminate her pregnancy, it distinguished between “mental retardation” and “mental illness,” stating that lowering the consent requirement for women with mental retardation would be an arbitrary and unreasonable restriction of reproductive rights. The state’s commitment under the Convention on the Rights of Persons with Disabilities to respect the reproductive choices of women with mental impairment was noted by the Court.
BACKGROUND OF THE CASE
The right to life is contingent on personal liberty and bodily integrity. In fact, the co-terminus relationship between both ideas sheds light on the topic of reproductive choice. Reproductive autonomy has been recognised as a right of every woman since the Roe v. Wade decision and the establishment of the United Nations Convention on the Elimination of All Forms of Discrimination against Women. A woman with a disability has the same rights as a man with a disability under the United Nations Convention on the Rights of Persons with Disabilities. However, there is a substantial factor at odds with reproductive autonomy in circumstances involving termination of pregnancy, namely the life of an unborn child and its attendant claims. The Medical Termination of Pregnancy Act of 1971, which allows for abortion within twenty weeks of pregnancy with medical practitioner clearance, is an attempt to balance these competing objectives. It specifies the circumstances in which the termination may occur. In the face of the current norm, one intriguing question is whether the specified parameters can be altered by the state in the exercise of its parens patriae rights if the pregnant lady is mentally retarded and wishes to prolong her pregnancy. The Supreme Court of India has addressed this issue in the case of Suchita Srivastava v. Chandigarh Administration.
The Court positioned ‘reproductive autonomy’ within the corpus of the right to life and personal liberty by broadening the bounds of Article 21 of the Constitution. While this is a positive conclusion, the judgement itself lacks enough legal rationale and logical coherency for human rights defenders to use the final verdict in an emancipatory manner.
In the current case, at Chandigarh, a woman with a mental disability was raped in a government-run welfare institute. She had been pregnant for nine weeks when she was discovered. A medical board was formed to determine whether she possessed the necessary aptitude and understanding to continue with the pregnancy, which favoured abortion. When the High Court was asked for an opinion, it appointed an expert panel that advised that the pregnancy be continued. The Court, using its parens patriae powers, overturned the decision and ordered the case to be dismissed. The Supreme Court overturned this decision. It held that reproductive autonomy was a vital aspect of a woman’s right to life under Article 21 in a nod to Roe v. Wade. It rejected the use of parens patriae powers to overturn the appellant’s decisions and demanded that the state ensure healthy delivery and post-natal care for both mother and child. It further stated that prejudices about people with disabilities are no longer acceptable now that India has ratified the UN Convention on the Rights of Persons with Disabilities. Despite a fair outcome, the judgement fails to find the connections between reproductive autonomy and Article 21 that this comment tried to illuminate. The Court’s uncritical acceptance of the legislative distinction between mental retardation and mental illness in terms of exercising legal ability, as well as its over-reliance on medical opinions, demonstrates an incomplete comprehension of the Convention and the paradigm it tries to create. Its effect and ability to help disability rights crusaders is hampered as a result of this.
FACTS OF THE CASE
A woman naming Suchita Srivastava, who had been orphaned was being cared for in a government facility. Her mental capacity was that of a nine-year-old. She lacked family support and was completely reliant on the government for her care. While she was at the institution, she was raped and later became pregnant. Her pregnancy was discovered by the Institution’s employees when she was nine weeks pregnant. Following this revelation, the Chandigarh government filed a criminal case within the police station and formed a medical board to assess the woman’s mental state. The woman was an intellectual handicap, according to the medical board. The woman’s pregnancy should be terminated, according to a government-appointed medical board. The government subsequently petitioned the Punjab and Haryana High Court (“High Court”) for permission to terminate the pregnancy.
The High Court created an independent expert body comprised of medical professionals and judges to study the facts and advise the High Court on its conclusion. Despite the fact that the victim was ‘unable to perceive and understand the repercussions of her own future and that of the child she is bearing’, the expert panel concluded that the pregnancy should not be terminated. Furthermore, the expert panel discovered that the woman wants to carry the pregnancy to term. Despite this, the High Court allowed Respondent to terminate the pregnancy. The woman/Appellant went to the Supreme Court to appeal the High Court’s verdict.
The woman was 19 weeks pregnant at the time of the appeal, and India’s legislative limit under Section 3 of the Medical Termination of Pregnancy Act 1971 (“MTP Act”) only allowed abortions up to 20 weeks gestation. This case was decided on the basis of Section 3 of the “MTP Act,” which allows for abortion under certain circumstances, including the woman’s permission, the stage of the pregnancy, the woman’s mental and physical health, and the foetus’s health.
ISSUES RAISED BEFORE THE COURT
During the proceedings of the case, several significant issues were raised before the Apex Court which is as follows:
- Is it correct for the High Court to order the termination of a pregnancy without the agreement of the woman involved?
- What are the proper standards for a Court to exercise Parens Patriae jurisdiction, even if the stated woman is believed to be mentally incapable of making an informed decision?
ARGUMENTS FROM THE APPELLANT’S SIDE
- The Learned Counsel of the Appellant stated before the court the victim had made it known that she wanted to have a child. Despite other circumstances such as a lack of comprehension of the sexual act and concerns about her ability to carry the pregnancy to term and assume mother obligations afterward, her reproductive decision should be supported.
- Even if a woman is deemed to be “mentally retarded,” the applicable statute plainly states that she must consent to the termination of a pregnancy. It is important to emphasise the text of Section 3 of the Medical Termination of Pregnancy Act of 1971.
- ‘Personal liberty’, as defined by Article 21 of the Indian Constitution, includes a woman’s ability to make reproductive decisions. It’s critical to understand that reproductive decisions can be used to both procreate and refrain from procreation. The most important aspect is to respect a woman’s right to privacy, dignity, and bodily integrity.
- It was argued that women’s reproductive choices, such as the ability to avoid sexual activity or the insistence on using contraceptive techniques, should be unrestricted. Furthermore, women have the option of using birth control measures such as sterilisation treatments.
- The pregnant woman’s agreement is required before the termination of the pregnancy can be carried out. Section 3(4) (b) of the MTP Act, 1971, expresses this position unequivocally. The exceptions to this requirement of consent are set forth in Section 3(4) (a) of the Act, which states that if the pregnant woman is under the age of eighteen or is a “mentally ill” person, the pregnancy can be terminated provided the pregnant lady’s guardian consents. The sole other exception is provided in Section 5(1) of the MTP Act, which allows a registered medical practitioner to proceed with a pregnancy termination if he or she is of the opinion that it is “urgently required to save the pregnant woman’s life.” It was argued that none of the above mentioned exclusions could be applied to the current situation.
ARGUMENTS FROM THE RESPONDENT’S SIDE
- The Learned Counsel for the respondent submitted that the appellant has a limited comprehension of pregnancy, according to the Expert body, and may not be entirely prepared to take on the obligations of a mother.
- Concerns have been raised concerning the victim’s mental competence to cope with the responsibilities of a full-term pregnancy, childbirth, and subsequent childcare.
- It was often said in court that the victim has a limited awareness of the sexual act and may not be aware of the societal stigma that may be linked to a child born as a result of a rape act.
- Furthermore, the medical specialists who testified in court expressed concern that the victim would require continual care and supervision throughout the pregnancy, as well as for delivery and after-birth childcare. Maternal responsibilities entail a particular level of physical, emotional, and social difficulties, and it was reasonable for medical professionals to assess whether the victim was capable of handling them.
- Even though the victim assured the members of the Expert Body that she was willing to bear the child, the respondent’s counsel warned everyone that because she was also deemed to be extremely suggestible, her opinion could change in the future.
- ARTICLE 14 OF THE INDIAN CONSTITUTION: Article 14 of the Indian Constitution guarantees its citizen’s equality before law further as equal protection of the law to all or any person within the territory of India. This includes the equal subjugation of every individual to the authority of law, yet as equal treatment of people in similar situations. The latter empowers the state to classify individuals for legal purposes, provided that there is a reasonable basis for doing so, which means that the classification should be non-arbitrary and supported by a technique of intelligible differentiation among individuals who seek to be classified, as well as who have a rational relevance to the goal of the classification.
- ARTICLE 21 OF THE INDIAN CONSTITUTION: Article 21 of the Indian Constitution is regarded as the heart and soul of the Indian Constitution. According to Article 21, “No person shall be deprived of his life or personal liberty except according to the procedures established by law”. The right to life is fundamental to our existence as human beings, and it encompasses all aspects of life that contribute to making a man’s life meaningful, complete, and worthwhile. It’s the sole article within the Constitution of our country that has received the widest possible interpretations. Article 21 gives shelter, growth and nourishment to too many rights.
- SECTION 120B OF THE INDIAN PENAL CODE: According to Indian penal code section 120B,
- Where no express provision is made in this Code for the punishment of such a conspiracy, whoever is a party to a criminal conspiracy to commit an offence punishable with death, life imprisonment, or rigorous imprisonment for a term of two years or more shall be punished in the same manner as if he had abetted such offence.
- Whoever is a party to a criminal conspiracy that is not a criminal conspiracy to commit an offence punishable as aforesaid must be punished by imprisonment
- SECTION 376 OF THE IPC: The offence of “Rape” is punishable under Section 376 of the Indian Penal Code. Clause (1) of the provision specifies that anyone who commits the heinous crime of rape must be punished by imprisonment. It shall not be less than seven years, but may be for life or for duration of up to ten years, and shall be subject to a fine.
- If the woman raped is his own wife and she is not under the age of twelve, he will be sentenced to two years in prison, a fine, or both if she is not under the age of twelve.
- It is also stated that the court may impose a sentence of imprisonment for a period of less than seven years for adequate and specific grounds to be stated in the ruling.
In regard to the first issue, the Hon’ble SC found that the Appellant was eager to have the childbearing. According to Section 3 of the Medical Termination of Pregnancy Act of 1971, consent is a requirement for executing an abortion on a woman who has reached the age of majority and does not suffer from any ‘mental disorder’ that is distinct from ‘mental retardation’ for the purposes of this act. Forcible termination will violate Appellant’s rights to women’s reproductive choice and, as a result, her rights to “privacy, dignity, and bodily integrity” under Article 21 of the Indian Constitution. The right to carry a pregnancy to term was incorporated in the reproductive rights. On the nature and scope of women’s reproductive rights, the Court determined that while a woman had complete control over her body, she only had a ‘qualified right to abortion’. According to the Court, this right is limited since there is a ‘compelling state interest’ in safeguarding the future child’s life. The MTP Act spells out the requirements for exercising the right, as well as the limitations that apply. To uphold personal autonomy in the context of intellectual disabilities and the MTP Act, the Court also pointed to the right to equality as articulated in the United Nations Declaration on the Rights of Mentally Retarded Persons (1971). According to the Court, India has an obligation to respect the rights affirmed in the Convention on the Rights of Persons with Disabilities of 2007.
The MTP Act “clearly respects the personal autonomy of mentally retarded persons who are over the age of majority”, according to the Court. After reviewing mental disability statutes, the Court determined that there is a legal distinction between mental retardation and mental disease. Under Section 3(4) (a) of the MTP Act, a guardian can make decisions on behalf of a person with mental illness, but not on behalf of a person with mental retardation, such as the Appellant. The Court found that because the pregnant woman’s agreement is an important criterion under the MTP Act, its dilution could not be permitted because it would “amount to an arbitrary and unreasonable restriction on the victim’s reproductive rights.” In light of these findings, the Court found that Appellant’s consent was required for the termination of her pregnancy and that the procedure could not be carried out without her consent.
On the second question, the court disagreed with the ‘substituted judgement test’ under the common law doctrine of “Parens Patriae.” In light of the Expert Body’s findings, it was concluded that the decision allowing the termination was not in the best interests of the Appellant. Because the pregnancy was in its 19th week, the Court reasoned that forcing the abortion would be high risk and could cause extreme emotional stress for Appellant because she had not consented to the treatment.
As a result, the Court stayed the lower court’s decision, essentially refusing the termination.
Although the Supreme Court erred in its decision in Suchita Srivastava, I believe it is somewhat correct when it recognises the reproductive rights of those with ‘mental retardation’. When pregnancy is induced by a consenting act of intercourse between ‘mentally retarded persons,’ the Court is justified in ruling that consent is unambiguously relevant in such a situation. Although the circumstance in Suchita Srivastava was unique in that the victim had been impregnated by a devilish act of rape, in such cases, the Court, Guardians, or Parents of the victim should act in the victim’s best interests because they are incapable of making decisions on their own.
When people are diagnosed with mental retardation, they should be separated into levels of mental retardation before being considered for medical termination of pregnancy. They should also be checked to see if they are capable of giving legally valid permission before proceeding with the termination. Although the Supreme Court erred in its decision in Suchita Srivastava, it shed important light on mental retardees’ reproductive rights and, as a result, has provided a ray of hope for people with disabilities (which includes those suffering from “mental retardation”) to have children of their own.
Consent is required to execute an abortion on a woman who has reached the age of majority and is not suffering from any sort of mental disorder – For the purposes of this statute, there is a clear distinction between “mental sickness” and “mental retardation” – The Act’s language clearly supports the personal autonomy of mentally impaired people above the age of majority – The applicable statute expressly states that even if a woman is deemed to be “mentally retarded,” she must consent to the termination of her pregnancy.
Furthermore, it is necessary to look past social preconceptions in order to objectively determine whether a person with minor mental retardation is capable of performing parenting responsibilities.