'First Judgment Allowing Rape Victim To Terminate Pregnancy Was Authored By Me, Unfortunately SC Reversed It' : CJI Surya Kant

While dealing with the pregnancy termination case of a 15-year old rape victim, Chief Justice of India Surya Kant recently lamented the Supreme Court's failure to bring about changes in medical termination of pregnancy laws at an earlier point.

The CJI recalled that as a judge at the Punjab and Haryana High Court, in 2009, he was the first to author a judgment favoring termination of pregnancy in the case of a rape victim (Nari Niketan inmate rape case). However, that ruling was "unfortunately" overturned by the Supreme Court.

"First judgment in this country was authored by me. On this point. Unfortunately, this Court stayed that judgment. Otherwise law could have been well settled at that time. And following that Roe v. Wade, Supreme Court ultimately reversed their own view. Justice Augustine(Justice AG Masih) was my bench partner at that time", CJI said.

Notably, when the Addl Solicitor General (for AIIMS) argued that what the Supreme Court would decide in this case would become the law of the land, CJI exclaimed, "This should have been the law of the land in 2014, when this Court unnecessarily interfered! What kind of...we are forcing a rape victim only because law does not adequately protect her? This is the unfortunate jurisprudence that at one point developed!"

Although, he also expressed solace over the subsequent course-correction by Supreme Court. "Thankfully we undertake correctional measures. Global jurisdiction has taken this view. We have also corrected ourselves. A firm view has been taken that on a minor child, a rape victim, there should not be any impediment in law to force her to bear an unwanted child. That is the settled law."

During the hearing, the CJI also opined that the law must be amended to relax the 24-week timelimit for the termination of pregnancies arising out of rape, especially when the victims are children.

The remarks came while a bench of CJI Kant and Justice Joymalya Bagchi was dealing with a curative petition filed by the All India Institute of Medical Sciences, New Delhi, against a coordinate bench order allowing the 15-year old victim's termination of pregnancy at 30 weeks.

While the Court said that AIIMS and/or the State cannot impose their decision on the victim/her family, it allowed the doctors to counsel the victim and her family, to enable an informed decision on whether to go forward with the pregnancy.

During the hearing, while Additional Solicitor General Aishwarya Bhati raised an emotional plea for saving the fetus, CJI Kant highlighted the emotional toll and consequences of the unwanted pregnancy on the victim-child. The CJI underlined that it was a clear case of child rape and taking forward the pregnancy could scar the victim forever.

When the ASG highlighted another case, where pregnancy was not allowed to be terminated by the Supreme Court and a child was born, the CJI said that the circumstances could have been different if the victim was not a child herself.

"It is fetus versus a child. Had it been a case of a major woman getting it done voluntarily, things would have been different. The law could turn otherwise. But it's a fetus versus child fight", he remarked.

The CJI further called on the State/AIIMS doctors to understand the mental agony that the victim must be going through every second of her unwanted pregnancy. He lamented that the victim was being expected to become a mother at an age when she should be having and pursuing her own aspirations.

When the ASG submitted that the victim has already suffered for 30 weeks, but 4 more weeks will give the fetus a fighting chance, the CJI commented that instead of a fetus that may or may not survive, the State should focus on the millions of deserted and abandoned children in streets who have nobody to look after them. "There are deserted and abandoned children...sold by parents. In this country, we should look after them. They are roaming in the streets. There are mafia operating child trafficking. You should take care of those children. We have millions and millions of children in this country to look after!"

In response to a submission that the State would ensure the best interests of the victim-child and that the newborn will be given for adoption, the CJI emphatically said that no one can compensate for what the victim has gone through. Ultimately, after it was claimed that termination of pregnancy is not possible at this stage, and doctors have the option of feticide (which is illegal) and premature delivery, the bench allowed the AIIMS doctors to present the victim/her family with relevant medical information (such as risks) to enable an informed decision.

If the victim/her family change their mind and approach the Court for reversal of the decision, the same would be considered, the bench indicated.

For context, the case decided in 2009 by CJI Kant as a High Court judge was the Nari Niketan rape case of a mentally retarded woman. The victim was raped by the staff of Nari Niketan, a government-run welfare institution, and became pregnant as a result. Her pregnancy was discovered at a later stage, when she transferred to another institution-Aashreya. A complaint was filed by the Aashreya in-charge and approval for termination of pregnancy sought by the Chandigarh Administration.

Notably, the victim was not only mentally retarded, but also an orphan with no one to look after her or her prospective child. The High Court constituted an Expert Body to give its findings, which reported that the victim wanted to bear the child. However, a bench led by Justice Kant (as His Lordship then was) directed termination of pregnancy, opining that termination of pregnancy was in the best interest of the mentally retarded victim.

In appeal, the Supreme Court stayed the High Court order and therefore the termination of pregnancy. It opined that the High Court order was not in the 'best interests' of the victim, as termination at the advanced stage of 19-20 weeks posed significant health risks to the victim. Besides, the Court ordered provision of the best medical facilities during the pregnancy and for post-natal care. A Trust also undertook to look after the victim and provide childcare.

The other similar case, referred to during the hearing by ASG Bhati, was a 2024 case where a 14-year old rape victim's mother approached the Court seeking termination of pregnancy. Despite the victim being in the 30th week of pregnancy, the Supreme Court allowed her to terminate pregnancy. However, later, on being informed about certain inherent health risks, the victim and her family expressed changing views. On their wish, and keeping in mind the minor's health, the Court recalled its order allowing termination of pregnancy.

Factual aspects aside, the bench in that case, led by ex-CJI DY Chandrachud, expressed reservations about the Medical Termination of Pregnancy Act not allowing termination of pregnancy above the upper limit of 24 weeks in the case of minor victims of rape and incest, while allowing termination of such pregnancies if there are substantial fetal abnormalities. According to it, the legislature seemed to have made a value judgment that a substantially abnormal fetus will inflict more aggravated injury on a pregnant person than rape.