Reproductive Choice of Woman Is a Fundamental Right Flowing From Article 21 Of Constitution :Rajasthan HC [Read Judgment]

A Division Bench of the Rajasthan High Court has upheld the notion that the reproductive choice of a woman is a fundamental right encompassed under the umbrella of Article 21 of the Constitution of India. It also held that right of child rape survivor to make any reproductive choice outweighs the right of the unborn child to be born, even in cases where pregnancy is at an advanced stage. In doing so, the Division Bench set aside a Single Bench judgment which impinged upon the statutory right of seeking medical termination of pregnancy provided to survivors of rape by The Medical Termination of Pregnancy Act. Despite the exercise involved in the appeal being rendered futile as the survivor had already delivered the child, the High Court took up the issue on appeal by the State Government in a bid to clear the path of future rape survivors. FACTS OF THE CASE A minor girl was sexually assaulted and ended up conceiving. In order to seek for permission for termination of the pregnancy, an application was moved before the Special Judge, SC/ST Cases, Churu who directed for a medical examination to be conducted in order to ascertain the girl's mental and physical status, as well as that of the foetus. A direction was also given to check whether the minor girl was physically capable of giving safe child birth or not. The Medical Board gave its opinion that there would be no serious threat to her life as a result of termination of pregnancy and this opinion was put before the Special Judge who transferred the case to the Court of the Special Judge, POCSO Act Cases. The Special Judge of the POCSO Court passed an order holding that the application was not maintainable "because the length of gestation had gone beyond the threshold of 20 weeks prescribed by the Medical Termination of Pregnancy Act, 1971 (MTP Act)". It was also held that the relief, if any, could be extended only by the High Court in its writ jurisdiction. Accordingly, the survivor preferred a writ petition before the High Court of Rajasthan and an additional opinion was sought from the Medical Board regarding whether the termination of pregnancy would be conducive to the health of the girl or would it pose any serious threat to her life and body. The Medical Board expressed that no serious threat would pose to the survivor. However, the Single Judge Bench of the HC rejected the petition and held that the foetus in the womb had a right to life as guaranteed under Article 21 of the Constitution of India. The Order of the Learned Single Judge, while acknowledging the pain and agony of a rape survivor, observed that period of 20 weeks as stipulated by the MTP Act had passed and that the "Court cannot be unmindful of the voice of the 'yet to be born' – a fully alive prospective child in the womb". The Order further stated that the "compelling State interest" in preserving life had to be balanced vis-à-vis the right of the Petitioner as a rape survivor from suffering unnecessary mental agony. Accordingly, the facet of "being alive" encompassed by Article 21 took precedence over that of "bodily integrity", and the court dismissed the petition of the survivor. The State Government then appealed against the judgement rendered by the Learned Single Judge claiming that "the impugned Judgement impinges upon the fundamental right of victims of rape from seeking termination of a forced pregnancy". ARGUMENTS ADVANCED Additional Advocate General Pankaj Sharma submitted to the Division Bench that the impugned Judgement was bad in the eyes of law as it ran contrary to the letter and spirit of the MTP Act. He contended that concept of comparative agony as evaluated by the Single Bench was could not be employed as scientific research had established that child birth at an age below 18 years was harmful to the mental and physical well-being of the mother. "The possibility that the girl giving birth at such a tender age would suffer numerous future complications is imminent. He urged that in a case where conception is a result of sexual assault being committed on a minor girl, then her fundamental right to live as a normal person without undergoing trauma of giving birth at such a tender age would have to be given precedence over the fictional right of the child yet to be born". Sharma referred to Supreme Court judgments such as Sarmishtha Chakraborty & Anr. v. Union of India (2018), Mrs. X and Ors v. Union of India & Ors (2017) and Suchita Srivastava & Anr v. Chandigarh Administration (2009) in order to drive home the point that the right to seek termination of pregnancy must be honoured and upheld unconditionally irrespective of the length of gestation, except for those case where medical opinion is otherwise. HELD The Division Bench of the Rajasthan High Court comprising of Justices Sandeep Mehta and Dr. Pushpendra Singh Bhati observed that the learned Single ...

Reproductive Choice of Woman Is a Fundamental Right Flowing From Article 21 Of Constitution :Rajasthan HC [Read Judgment]

Radhika Roy

Reproductive Choice of Woman Is a Fundamental Right encompassed under the umbrella of Article 21 of the Constitution of India.

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