The Karnataka High Court has said that the right of a woman to exercise her reproductive choice is a dimension of "personal liberty" as understood under Article 21 of the Constitution of India and she has a sacrosanct right to have her bodily integrity protected.
A single judge bench of Justice N S Sanjay Gowda said that,
"The act of forcing a woman to bear with an unwanted intrusion on her body and endure the consequences of that intrusion would be a clear transgression of her inviolable fundamental right of "personal liberty" guaranteed under Article 21 of the Constitution."
The Court was dealing with a case where the medical practitioner had refused to terminate the pregnancy of a 16 years old rape survivor, as it had crossed 24 weeks as set down in Section 3 of the Medical Termination of Pregnancy Act, 1971.
The petitioner had approached the court urging that she cannot be forced to carry the burden of crime and cannot be compelled to deliver a baby which has been conceived against her will.
The court while allowing the petition noted,
"In cases of rape inflicted on minor girls, though there are certain statutory limitations prescribed under the 1971 Act, they would essentially be applicable only to medical practitioners. In such cases, the requirement to terminate the pregnancy medically would have to be considered and examined in an altogether different light by the Constitutional Courts."
Referring to sections 3 (2) (a) and 3 (2) (b) of the MTP Act, which stipulates the procedure for termination of pregnancy in cases not exceeding 20 weeks and not beyond 24 weeks, the court said,
"It is thus clear that the law creates a statutory presumption of grave injury to the mental health of the pregnant woman if she alleges that the pregnancy was caused due to an alleged rape."
Noting that the Act does not provide for termination of pregnancy after 24 weeks by medical practitioners even if it is alleged by the pregnant woman to have been caused by rape, the court said,
"It should also be kept in mind that a minor who has been raped and has become pregnant due to it, will be forced not only to be a victim of the crime but would also be compelled to bear with the burden of the crime inflicted on her by forcing her to deliver a child, the conception of which, was not due to the exercise of her reproductive choice. In fact, the fate of the child, if delivered, may also be perilous and detrimental to its own interest given the social stigma that would hover around it."
The court went on to opine that, "the statutory limitations imposed in a statute cannot be an impediment or a restriction on the exercise of Constitutional power of the High Courts. The exercise of this constitutional power would obviously be exercised rarely, sparingly and in exceptional circumstances and would obviously rest on the facts of each case."
Referring to Section 3 (2B) of the Act which excludes the applicability of the time of the length of pregnancies by the medical practitioner, if the termination is necessitated by the diagnosis of any substantial foetal abnormalities diagnosed by a Board, the court observed, "That the 1971 Act does not create an absolute bar for termination of pregnancies that have traversed even beyond the period of 24 weeks stipulated in Section 3(2) (b) of the Act."
Further, it referred to section 5 of the Act and said, "The Act, in fact, allows termination of pregnancy by a medical practitioner, without reference to the length of the pregnancy or without reference to the pre-conditions requisite for conducting them, if the continuance of the pregnancy constitutes a risk to the very survival of the pregnant woman."
Following which the court held,
"The consequences of continuing the pregnancy on the future life of the 16 year old would be quite severe and detrimental to a dignified life as contemplated under Article 21 of the Constitution."
The court also went through the opinion offered by the Medical Board comprised of Gynecologist, Radiologist and Psychiatrist and other doctors and said, "In my view, having regard to the circumstances explained above and the specific opinion rendered by the Medical Board, the petitioner has made out a case for issuance of a direction to terminate the pregnancy."
Accordingly the court directed that, "The 2nd respondent (District Health Surgeon, Belgavi), to ensure the medical termination of pregnancy of the petitioner forthwith in accordance with the provisions of Medical Termination of Pregnancy Act, 1971 and having regard to the opinion of the board."
Case Title: Kumari D v. State of Karnataka
Case No: W.P.No.104344/2021
Date of Order: 17th Day of November 2021
Appearance: Advocate Sharad V Magadum, for petitioner; Advocate V S Kalasurmath, for respondents