Termination Of Pregnancy

Source: The Hitavada      Date: 03 Jul 2017 11:09:17


Supreme Court has stated that one facet of granting compensation pertains to negligence and delay, which comes within the domain of public law remedy. The other aspect comes under the scheme of March 24, 2014 framed under Section 357 A of the CrPC. The petitioner is eligible to get the compensation and, therefore, the petitioner shall be paid a sum of Rs. 3,00,000/- by the State of Bihar.

IN THE judgement of the case – Indu Devi vs State of Bihar & others, delivered on May 9, 2017, Justice Dipak Misra and Justice A M Khanwilkar, at the Supreme Court, have after considering the All India Institute of Medical Sciences’ (AIIMS) Medical Board’s opinion directed the State of Bihar to pay a sum of Rs 3,00,000/- to the petitioner as she was victim of rape. The State Government was directed to provide all medical facilities to the petitioner as per the treatment graph given by the doctors.


The first order in the case of the petitioner was passed by the Apex Court on May 3, 2017, to the effect that, “The present case exposits a situation of its own kind. The lady petitioner, who is 35 years old, invoked the civil writ jurisdiction of the Patna High Court, seeking termination of pregnancy on the ground that after being sexually assaulted, she was given rehabilitation in the Women Rehabilitation Centre, namely, ‘Shanti Kutir Mahila Punarwas Kendra,’ Patliputra, Patna, Bihar, where her pregnancy was discovered.


“It was also found that she is HIV positive. She had expressed her desire to terminate the pregnancy on March 4, 2017. Thereafter, she was examined by the Patna Medical College and Hospital. As nothing fruitful happened in the said college, the petitioner was compelled to knock at the doors of the High Court under Article 226 of the Constitution of India.”


The High Court directed the petitioner to be examined by a Medical Board at Indira Gandhi Institute of Medical Sciences, Patna. The board submitted a report that a major surgical procedure was needed. The High Court took up the matter for hearing and, after referring to certain decisions of the Supreme Court, came to hold that the medical report had stated that it would be unsafe to the life of the petitioner and further there is compelling state’s responsibility to keep the child alive.


When the matter was taken up in the court, it requested the lawyers, P S Narsimha and Tushar Mehta, the Addl Solicitor General as to whether arrangements can be made for the petitioner to come to Delhi to be examined by a medical board at AIIMS, New Delhi. After obtaining instructions from the petitioner, her counsel submitted that she was inclined to be admitted by a medical board at AIIMS, New Delhi.


The Government counsel stated that a member from the Non-Governmental Organisation, namely, Koshish-TISS, should accompany the petitioner to Delhi. As far as the travel is concerned, the lawyers spoke in unequivocal voice that the arrangements shall be made for their stay and the petitioner can be examined by the medical board at the AIIMS latest by May 6 last.


The report of the medical board was directed to be produced before the court and it requested the lawyers to assist it on the issue and also to have some discussion with the doctors, for the court is concerned with saving a life of a destitute woman. As the court was inclined to think that a woman, who has already become a destitute being sexually assaulted and suffering from a serious medical ailment, not to go through further sufferings. The quintessential purpose of life, be it a man or a woman, is the dignity of life and all efforts be made to sustain it.


In pursuance of the court’s order, the medical board at the AIIMS examined the petitioner. The opinion of the medical board fundamentally is that at present the procedure involved in termination of the pregnancy is full of risk to the life of the petitioner and the foetus in the womb. The medical board has suggested that she is advised to continue HAART therapy and routine antenatal care, to reduce the risk of HIV transmission to the foetus/baby to the minimum.


In view of this opinion, it is the accepted position at the Bar that there cannot be termination of pregnancy. The petitioner’s counsel submitted that the petitioner along with the companion be sent back to Patna and for the said purpose appropriate arrangements be made by the Union of India to which Government lawyers consented. The court was all praise for the Union of India’s decision in this regard.


The petitioner’s counsel submitted that that the doctors at AIIMS may give the appropriate treatment graph for the petitioner, so that she can survive the health hazard that she is in. The Government counsel assured that the petitioner would be given the treatment graph by May 10, 2017. The controversy did not end there. The counsel for the petitioner submitted that because of the delay caused, she was compelled to undergo the existing miserable situation and, therefore, she was entitled to get compensation and that apart, she was entitled to get compensation under the Victim Compensation Scheme under Section 357-A of the CrPC by the State of Bihar.


Apart from this submission, the Apex Court stated that it was obligated to direct the Government of Bihar to provide all the medical facilities to the petitioner as per the treatment graph to be given by the doctors who were to examine the petitioner at AIIMS through the Indira Gandhi Institute of Medical Sciences at Patna, which shall work in co-ordination with AIIMS, New Delhi, so that the health condition of the petitioner is not further jeopardised.


The court granted liberty to the petitioner’s counsel to file an additional affidavit with regard to the facet of compensation within six weeks. The Government of Bihar was asked to file reply to the special leave petition as well as to the addl. affidavit within 4 weeks thereafter, that is by July 18 next.


The Supreme Court has stated that one facet of granting compensation pertains to negligence and delay, which comes within the domain of public law remedy. The other aspect of the compensation comes under the scheme of March 24, 2014 framed under Section 357 A of the CrPC. Needless to say the petitioner is eligible to get the compensation under the said scheme and, therefore, the petitioner shall be paid a sum of Rs 3,00,000/- by the State of Bihar, as she had been a victim of rape.


The court has determined the compensation in correspondence to clause 4 of the scheme. The said amount be paid to her within 4 weeks hence and compliance report to be filed with the registry of the Supreme Court. The other aspect of compensation is to be considered by the court on August 9, 2017.


By way of interim measure, the Supreme Court has directed that there shall be stay of the operation of the judgement and order passed by the Patna High Court in the civil writ case No 5286/2017, so that it is not placed reliance upon by any court.