Supreme Court CJI Bench says Centre's recall application in abortion case was not abuse of process of law

The Supreme Court on Monday took a favourable view of the Central government's decision to directly request the Chief Justice of India (CJI)-led bench to recall an order passed by another bench that had allowed the termination of a pregnancy..A three-judge bench led by the CJI observed stated that it has no doubt that the Central government had no intention to abuse the process of law by making the irregular mention and filing a recall application.."In the present case, the Union of India filed an application for recall because certain aspects of the situation at hand were brought to its attention after the petition was disposed of by the order dated 9 October 2023. We have no doubt that there was no intention to abuse the process of the law. However, the appropriate procedure which it ought to have followed would be to file a Review Petition, accompanied by an application for urgent listing and an application for hearing in open court, given the urgency of the matter", the bench explained..These observations were made in an October 16 judgment denying permission to abort a 27-week pregnancy. The October 16 judgment came in the second round of litigation in the matter. Earlier, an all-woman division bench had delivered a split verdict on October 11, days after it first permitted the abortion in an October 9 order.However, before the October 11 verdict was pronounced, the Central government drew flak from the division bench for orally requesting the CJI to list its application to recall the October 9 order permitting abortion. Justice BV Nagarathna, one of the judges on the division bench that pronounced the October 9 verdict, orally remarked,"Without filing a recall application you moved the honourable Chief Justice of India? I certainly do not support this. Every bench here is the Supreme Court.".Supreme Court slams Central government for approaching CJI with oral request to recall order of another bench.The October 11 split verdict eventually led the the referral of the abortion plea to a three-judge bench of the top court, comprising Chief Justice of India DY Chandrachud and Justices JB Pardiwala and Manoj Misra. This bench ultimately rejected the abortion plea in view of a medical report that found the foetus viable. .In doing so, the bench also noted that there was a situation of immense urgency surrounding the case. Given the facts and circumstances of the case, the present bench was permitted to relax the law in terms of listing and hearing the matter, the October 16 judgment further indicated. It justified this under its plenary powers under Article 142 of the Indian Constitution. The Court explained that these powers could be exercised in this case for the following reasons:a. This is not an ordinary civil case. Rather, it is one which concerns the viability of a medical termination of a pregnancy and the course of action to be adopted by the doctors on the basis of the development of the foetus; b. Certain aspects of the case which ought to have been brought to the attention of this Court came to light after the order dated 9 October 2023 had been passed. This was not within the control of any of the parties to the case but was the result of the actions of a third party altogether (the Medical Board). However, this information could have had a bearing on the directions issued by this Court; and c. There was immense urgency in this matter..The matter before the top court involved a married couple who had conceived a third time. The pregnancy sought to be terminated had crossed the legally permissible limit of 24 weeks for abortions under the Medical Termination of Pregnancy Act, 1971 (MTP Act). When the plea was filed, the pregnant woman was in her 26th week of pregnancy.The Court was informed that the couple did not terminate the pregnancy earlier as the mother was not aware that she had conceived again. This was because she was going through post-partum infertility and also suffered from post-partum depression..After a week of deliberations and two rounds of litigation before two different benches, a three-judge bench of the Supreme Court eventually rejected the abortion plea on Monday (October 16).The three-judge bench directed that delivery of the child be conducted at the All India Institute of Medical Sciences (AIIMS). The parents of the child are free to give the baby up for adoption if they wish to do so, the Court added..Follow our detailed report on the judgment here..Autonomy of mother triumphs, but can child be put to death on judicial order? Supreme Court in abortion plea.Follow Bar and Bench channel on WhatsAppDownload the Bar and Bench Mobile app for instant access to the latest legal news.