How the Patna HC and the Bihar govt stalled a HIV+ve rape victim’s abortion
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How the Patna HC and the Bihar govt stalled a HIV+ve rape victim’s abortion

Aditya AK

While state governments more often than not exhibit a callous lack of understanding of the law, the same is not expected of courts. And a recent dereliction of duty on the part of both, as well as hospital authorities, may result in dire consequences for an HIV positive rape victim who can no longer abort her foetus.

A Supreme Court Bench of Justices Dipak Misra, Amitava Roy and AM Khanwilkar recently highlighted the same in an appeal from a decision of the Patna High Court.

The facts of the case are that the appellant, a 35-year-old destitute woman was found on the pavement and taken into a shelter home. The authorities therein later found out that the woman was pregnant. A few weeks later, the appellant expressed a desire to terminate the pregnancy and was taken to Patna Medical College Hospital. At this juncture, it was alleged that she had been raped.

The hospital authorities insisted on the receiving the consent of the appellant’s husband and her father. Even after receiving the signatures from both, the hospital refused to undertake the operation. The hospital would turn her down again a couple of weeks later, as she was 20 weeks pregnant. It was then found out that she was HIV positive.

This was when she decided to approach the Patna High Court. Unfortunately, she would get no succour from the Court, which took almost three weeks to decide the case, exacerbating her time-sensitive situation. To make matters worse, the High Court bench of Justice Dinesh Kumar Singh would rule that the abortion could not take place, based on his interpretation of a medical report submitted by IGIMS, Patna.

As a last resort, appellant filed an appeal in the Supreme Court, which directed a medical board at AIIMS to look into the feasibility of performing an abortion at that point in time. However, it was too late, and the AIIMS doctors opined that it would be too risky to go through with the procedure. Vrinda Grover appeared for the appellant in the apex court.

To delve into how the High Court erred, one must peruse the provisions of the The Medical Termination of Pregnancy Act, 1971. Section 3(2) of the Act stipulates termination of pregnancy:

“(a) where the length of the pregnancy does not exceed twelve weeks if such medical practitioner is, or

(b) where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners are. Of opinion, formed in good faith, that –

(i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury physical or mental health; or

(ii) there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.

Explanation 1.-Where any, pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.”

From the above, it is clear that the appellant ought to have been allowed to go through with the procedure, as she was a victim of rape. However, the High Court opined that the victim’s failure to immediately disclose the offence meant that she was not suffering from “grave injury to mental health”. The single judge also wrongly interpreted the medical report to come to the conclusion “that termination of pregnancy (after 20 weeks) will be more hazardous to the victim”.

The Court also failed to take into consideration that a number of Supreme Court decisions have allowed abortion of pregnancies up to 24 weeks long. Moreover, there is a Bill pending in Parliament to increase the duration to 24 weeks, in light of medical advancements.

Before the High Court, the state government had taken a stand that the consent of the father and the husband was necessary. In doing so, it had adopted a paternalistic view, failing to understand the concept of consent envisioned under the Act.

The High Court further misinterpreted the ‘best interests’ rule in Suchita Srivastava and another v. Chandigarh Administration, which had focused on consent. It had also failed to make a distinction between mild mental retardation (which the appellant suffered from) and mental illness, thereby coming to the conclusion that the appellant was incapable of making her own decisions.

Last, but not least, there was an unwarranted delay in disposing of the case. The petition was filed on April 7, and the judgment came out only on April 26. Hearings were adjourned for inconsequential reasons, such as the appellant’s father’s name was entered wrongly on the record.

The Supreme Court pulled no punches in its criticism of the High Court decision.

“We do not have the slightest hesitation in saying that the approach of the High Court is completely erroneous…

…As the facts would unfurl, the appellant had given consent for termination and she had categorically alleged about rape. In such a circumstance, we perceive no fathomable reason on the part of the PMCH not to have proceeded for termination of the pregnancy because there was nothing on record to show that there was any danger to the life of the victim.”

Appearing before the Supreme Court, the state government tried to get away without paying compensation to the appellant, and tried to shift the entire blame on the High Court. However, the apex court did not buy this argument.

“The principle of actus curiae neminem gravabit basically means an act of the court shall prejudice no man…The aforesaid principle despite its broad connotation is not attracted to the obtaining factual matrix inasmuch we have granted compensation because of the delay caused by the authorities of PMCH.”

Therefore, the Bench directed the state government to pay the appellant a compensation of Rs. 10 lakh.

“Keeping in view the mental injury that the victim has to suffer, we are disposed to think that the appellant should get a sum of Rs. 10,00,000/- (Rupees ten lakhs only) as compensation from the State and the same shall be kept in a fixed deposit in her name so that she may enjoy the interest.”

On the delay of the High Court in acting on the case, Justice Misra commented,

“…it is necessary to state that the learned singe Judge should have been more alive to the provisions of the Act and the necessity of consent only of the appellant in the facts of the case. There was no reason whatsoever to implead the husband and father of the appellant…Calling for a medical report was justified but to delay it further was not at all warranted. It needs to be stated that the High Courts are required to be more sensitive while dealing with matters of the present nature.”

The Court concluded by saying,

“It has to be borne in mind that element of time is extremely significant in a case of pregnancy as every day matters and, therefore, the hospitals should be absolutely careful and treating physicians should be well advised to conduct themselves with accentuated sensitivity so that the rights of a woman is not hindered.

The fundamental concept relating to bodily integrity, personal autonomy and sovereignty over her body have to be given requisite respect while taking the decision and the concept of consent by a guardian in the case of major should not be over emphasized.”

Read the Supreme Court Judgment:

14156_2017_Judgement_17-Aug-2017-watermark.pdf
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Read the Patna High Court judgment:

patna-watermark.pdf
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Image taken from here.

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