With bundles of statutes, we still have not been able to guarantee fundamental human rights to the population of our country. This case deals with three of the most essential rights – The Right to Privacy, Females’ fundamental Right over Body, and the dignity of life for the disabled (Divyang) sections of our society.
Factual Background of the Case
The victim in the case, who had been abandoned by her parents at an early age, was under the guardianship of the Missionaries of Charity, located in New Delhi. After that, she got admitted to the Government Institute for Mentally Retarded Children situated in Chandigarh and then was finally brought to the ‘Nari Niketan,’ a welfare institution located in Chandigarh.
She was later shifted to ‘Ashreya’ – a newly established welfare institution. They are government-run institutions the Chandigarh Administration manages. Suffering from an intellectual disability, the victim in the case had the mental soundness of a nine-year-old, was raped and impregnated in that institution. A Pregnancy test was conducted, which concluded that the woman was 8-9 weeks pregnant due to rape.
The Administration reported it to the Chandigarh police, who filed an F.I.R under Section 376 and Section 120B of the Indian Penal Code. Subsequently, an ossification test of the woman revealed her age to be around 19-20 years. The Government Medical College and Hospital constituted an expert body that examined the woman’s mental status, which they opined as ‘mild mental retardation’. Another multi-disciplinary medical body was formed, which submitted its opinion that recommended termination of the pregnancy.
The Administration moved the High Court of Punjab and Haryana to seek their opinion. The Court, acknowledging the idea of the said medical body, constituted its own expert body consisting of medical experts to answer a series of questions prepared by the Court that mainly analyzed the woman’s pregnancy from different angles to ascertain the “best interest “of the woman.
The expert body constituted by the Court concluded that the victim was physically capable of bearing the child but had a limited mental capacity to hold and raise the child.
Petitioner’s Contention – Women have Right over Body
The counsel for the appellant stated that according to the MTP provisions, the termination of the pregnant woman’s consent is required. It can be waived only when the woman is under 18 years of age or is mentally ill.
The other exception is provided under Section 5(1) MTP Act, where the consent of the registered medical practitioners is required to terminate the pregnancy. Article 21 of the Constitution provides for Personal liberty. Personal liberty offers the freedom to take one’s own decisions, the right to reproductive choices, right over body, right to abortion.
The Contention of the Defendant
According to the expert body report, the council stated that a woman’s consent to continue pregnancy was highly suggestible. There was a high probability that her opinion could change in the future. There are concerns regarding a woman’s mental competence to cope with the maternal responsibility and the child. The victim’s mental age is nine years old, and thus it would not be justified to allow her to continue the pregnancy.
High Court deciding against Women’s Right over Body
The High Court considered the medical opinions submitted by the Expert Committee. It took note of the provisions in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 & The National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation, and Multiple Disabilities Act, 1999. There was no distinction between “mental illness” and “mental retardation” according to the Court.
The High Court invoked the doctrine of ‘Parens Patriae.’ It concluded that the termination of pregnancy would serve the victim’s best interest in these particular circumstances even though the termination is against her consent. The High Court directed for the termination of pregnancy, calling it to be in the ‘best interests of the victim’.
Does the Supreme Court think Women have Right to Body?
The Supreme court overruled the High Court’s verdict and allowed for the continuance of the pregnancy. According to the expert body report, the woman suffers from mild mental retardation. While Section 3(4) talks about a “mentally ill person” which is different from “mental retardation.”
The Court then cited the case law of Roe v. Wade where BLACKMUN J. (speaking for the majority) observed that: “The right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.”
The Court held that the termination of pregnancy in the 19th week could create mental and emotional stress for the woman. A person should possess good emotional and social skills to be a good parent, not a high I.Q. As to the concerns raised regarding the victim’s limited mental capacity to rear the child, the Court directed the State Govt. to ensure proper care and supervision of the victim during pregnancy and post-pregnancy. The Supreme Court further referred to Principle 7 of the United Nations Declaration on the Rights of Mentally Retarded Persons, 1971 which states that a fair procedure needs to be developed and used to grant or refuse rights guaranteed to mentally disabled persons. Being a member of the Convention on the Rights of Persons with Disabilities (CRPD), India has to abide by the contents of the Convention written therein.
Has the Supreme Court erred in its decision?
The expert body that the High Court constituted concluded a few crucial points as stated by Supreme Court in the judgment:
- The girl suffers from mild to moderate mental retardation. Due to her mental status, she could not practice independent socio-occupational functioning and self-sustenance.
- She cannot distinguish between a child born before or after marriage or outside wedlock & cannot understand its social connotations.
- Does she know or understand that she has been impregnated due to non-consensual sexual intercourse?
- She has a minimal understanding of the sexual act and relationship and even the concept of getting pregnant. She did not volunteer for sex and did not like the sexual act.
- The mental age of the girl was nine years old, while her ossification test indicated it to be between 19-20 years old.
The Court stressed the difference between “Mental retardation and mental disability.” The 2002 amendment to the MTP act amended Section 2(b) of the MTP Act, where the definition of the word `lunatic was replaced by the definition of the expression `mentally ill person, which is:
“`mentally ill person means a person who needs treatment because of any mental disorder other than mental retardation.”
Section 2(b), Medical Termination of Pregnancy Act
Then, the Court mentioned the distinction in definition in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. The statute mentions `mental illness’ and `mental retardation’ as two different types of `disability.’ In referring to Section 2(i), (q), and (r), which define `disability,’ `mental illness’ and `mental retardation’ in the following manner:
disability’ means – (i) blindness; (ii) low vision; (iii) leprosy-cured; (iv) hearing impairment; (v) locomotor disability;(vi) mental retardation; (vii) mental illness;
Section 2(i), Persons with Disabilities Act
`mental illness’ means any mental disorder other than mental retardation
Section 2(q), Persons with Disabilities Act
mental retardation’ means a condition of arrested or incomplete development of mind of a person which is specially characterized by sub normality of intelligence.”
Section 2(r), Persons with Disabilities Act
And considering this, the Court concluded that mental illness and mental retardation are two different things; people with mental retardation can decide if they are above 18 years old. Thus, the Court refused abortion against the girl’s consent. The Supreme Court, in the judgment, observed that though the guardian can make a decision on behalf of a ‘mentally ill person’ he cannot do the same thing on behalf of a ” mentally retarded” person regarding the continuance of pregnancy. Finally, the Supreme allowed for the continuation of pregnancy.
A Hypothetical Situation
A 9-year-old girl does not have proper knowledge about sexual acts or pregnancy but gets pregnant due to a diabolical act of rape. After a few weeks, her parents discovered the child’s pregnancy. The parents of the child would opt for the termination of pregnancy.
Using this situation, we can see that a 9-year-old child incapable of understanding the sexual act does not even know about the things happening to her body. Can she understand the maternal responsibility or bear the child?
The victim was an orphan girl though she was 19 years old, her mental age was nine years; how can we expect her to bear or raise a child? The expert body report stated in point (xi) of the information submitted by them, “Her mental state is dependent on imitative behavior and rote memory and thus she is highly suggestible. Due to this, she can be easily influenced. The counsel for the respondent stated the possibility that even though the victim had told the members of the Expert Body that she was willing to bear the child, her opinion may change in the future. Thus, reliance on the fact that abortion was against her consent does not seem to sync with the expert body report as, according to them, her willingness was questionable. What happens if tomorrow she changes her decision?
Pregnancy and raising a child affect the mother and the whole family physically, mentally, and psychologically. Here, we have only a single mentally retarded mother; thus, it is not difficult to ascertain its effect on her health. According to the expert body report, she does not understand the difference between a child born before or after marriage and the societal connotations. There was not much discussion on this particular aspect by the Court while determining this issue. This brings another question before us “whether her mental health can bear this additional burden of social stigma and mental pressure “?
Both the courts used the doctrine of “Parens patriae.” According to the principle, the State needs to make decisions for those who cannot care for themselves. Courts have exercised `Parens Patriae‘ jurisdiction to make reproductive decisions for mentally retarded persons. There are two standards: the `Best interests’ test and the `Substituted judgment’ test. It is interesting to note that High Court and Supreme court used the “best interest “test but came to a contradictory conclusion. At the same time, Supreme Court stated that its decision needed to be for the woman’s interest and not for other people in general. The woman will need care, and this will entail some costs and stated that the best interest of the woman is in her choice to continue the pregnancy.
Still, High Court using the best interest test concluded that the termination of pregnancy will serve the `best interests of the victim in this particular even though it is against her consent. Termination of pregnancy will be the best option on two grounds:
- The girl is a minor, and abortion is the right course of action for her overall well-being.
- The diabolic act of rape impregnated her.
Conclusion
After going through the judgment, one can conclude that we need a more comprehensive and holistic definition of mental illness and mental retardation in the Medical Termination of Pregnancy Act, of 1971. It should include the classification of mental insanity and further action taken in pregnancy out of wedlock or out of mutual consensus. The right to abortion is an essential part of the Indian Constitution. It has been recognized under the Right to Privacy in Article 21 in the K.S Puttuswamy case. The right to make reproductive choices is an integral part of Article 21 of our constitution.
The other most crucial point the judgment gives is that the woman should be considered the sole authority to taking decisions about her body and should have the right over body (HER BODY, HER CHOICE). This judgment also sheds light on disabled persons’ rights and the right to make a reproductive choice.
This judgment can be considered as a small step towards the empowerment of women, i.e.: “The explicit recognition and reaffirmation of the right of all women to control all aspects of their health, in particular their fertility, is basic to their empowerment.”
Submitted by Himani Mishra, LL.M. (Faculty of Law, University of Delhi ) and UGC NET JRF (2022) qualified.