'What Is Happening In Gujarat High Court? We Don't Appreciate HC's Counterblast To Our Order' : Supreme Court In Abortion Case

The Gujarat High Court has once again come under the criticism of the Supreme Court for the manner in which it passed an order in a rape survivor's plea seeking an abortion.

Last Saturday, the Supreme Court had held a special sitting to hear the woman's plea to terminate her pregnancy, which is now nearing 28 weeks. During the hearing, a bench comprising Justices BV Nagarathna and Ujjal Bhuyan had criticised the Gujarat High Court for handling the matter in a 'lackadaisical manner'. First, the high court had adjourned the hearing for 12 days despite the urgency of the plea. Later, the hearing was advanced to August 17, and on that day, the single-judge bench summarily dismissed the petition. This order of dismissal was not uploaded even until August 19, when the apex court heard the petitioner's appeal. Against this backdrop, the Supreme Court had sought an explanation from the high court registry, after observing that 'valuable time' had been lost due to the high court's approach.

Today, when the matter was taken, the top court was informed about a subsequent order by the single judge (August 19), which was passed after the Supreme Court heard the matter and passed an order.  In the said order, the Gujarat High Court seemingly attempted to clarify that the order of adjournment was granted in order to enable the counsel to get instructions from the rape survivor on whether she was willing to carry the fetus to term and hand it over to the State's facility.

The Supreme Court bench took great exception to this seemingly 'clarificatory' order passed by the Gujarat High Court. Justice Nagarathna did not mince words in expressing her dismay. She said - 

"We do not appreciate the high court's counterblast to the Supreme Court's orders. What is happening in the High Court of Gujarat? Do judges reply like this to a superior court's order? We do not appreciate this. These kinds of attempts are being made by high court judges to circumvent something we have said, like this. There is no need for any judge of the high court to justify its order."

Justice Ujjal Bhuyan also expressed surprise, asking what was the need for the High Court to pass this 'suo motu' order on August 19. Judges do not have to justify their orders by passing a subsequent order, Justice Bhuyan said. He also observed that the high court could not have imposed an unjust condition on a rape survivor, forcing her to bear the child. He said, "The view taken, I'm sorry to say, is against constitutional philosophy. How can you perpetuate unjust conditions and force the rape survivor to undergo pregnancy?"

At this juncture, Solicitor General of India Tushar Mehta appeared before the Court and requested the bench to refrain from making comments about the high court judge, while adding that the petitioner may be granted relief. He requested, "There was some misunderstanding. I think Your Ladyship might leave it at that. Please ignore this. We can request the judge to withdraw this order, on behalf of the government."

"How can we ignore when the state's counsel has brought this order to our notice?" Justice Nagarathna exclaimed, before repeating, "No judge can counterblast the Supreme Court's order." 

When the solicitor-general said that the order appeared to be clarificatory, Justice Nagarathna stressed that there was no need to pass such an order. 

Mehta again requested the bench to not make any adverse comments against the single judge, saying that the order was passed in a bona fide manner. "Please ignore what happened. Kindly do not [make adverse comments] because it really discourages high court judges. These have a demoralising effect. He is otherwise a very good judge."

Justice Nagarathna clarified that the question was not which judge passed the order, but the manner in which the order was passed. "We are not on any particular judge. We are only concerned with the manner in which the matter was dealt with."

Pregnancy outside marriage, particularly after sexual assault is injurious to mental health of woman: Supreme Court

In the order, the bench observed that while pregnancy in a marriage is an occasion for joy, pregnancy outside marriage, particularly after sexual assault, is injurious to the mental health of a woman. In view of this and after taking note of the medical report which declared her fit to undergo the termination procedure, the court allowed her plea - 

"We permit the appellant to terminate her pregnancy. We direct her to be present in the hospital today or 9 AM tomorrow, as she deems fit, so that the procedure for termination of pregnancy can be carried out."

Subsequent to the medical procedure, in the event that the foetus is found to be alive, the hospital has been directed by the court to provide all necessary facilities including incubation to ensure the survival of the foetus. The State shall then take steps to ensure that the child is adopted in accordance with law, the bench further directed.

With respect to the manner in which the August 19 order was passed by the single judge of the Gujarat High Court, the Supreme Court bench refrained from making any adverse comment in its order. "We restrain ourselves from saying anything on the order passed by the single judge of the high court on August 19 pursuant to the order passed by us on the said date," the bench pronounced.

Senior Advocate Sanjay Parikh, who represented the petitioner, told the bench that the same judge, in another case related to the pregnancy of a minor rape survivor, had invoked Manusmriti. 

Parikh also made a request for allowing the preservation of tissues of the foetus for use as DNA evidence in the rape case trial. The bench said that it can only direct the doctors to explore the feasibility of this plea. "We can only direct concerned medical experts to have regard to the feasibility of such a procedure being done, in the event of foetus being alive, or otherwise, and accordingly take steps. Needless to observe that it will be handed over to investigating agency," the bench added in its order.

Case Details

XYZ v. State of Gujarat | Diary No. 33790-2023

Citation: 2023 LiveLaw (SC) 680

Click here to read the order