Supreme Court Bench Split On Abortion Of 26-Week Pregnancy Of Married Woman, Refers To Larger Bench

The Supreme Court on Wednesday (October 11), while hearing the recall application filed by the Union against the Court's order allowing medical termination of a 26-week pregnancy of a married woman, referred the matter to a larger bench.

While Justice Hima Kohli said that her "judicial conscience" does not allow her to permit the termination of pregnancy in the light of the latest medical report about the possibility of the survival of the foetus, Justice BV Nagarathna said she found no reason to interfere with the "well reasoned order" passed by the Court initially on October 9. In view of disagreement, the matter has been referred to larger bench for consideration. 

A Special Bench of Justice Hima Kohli and Justice BV Nagarathna, while hearing the matter today, was informed by the petitioner, who was present in person, that she did not wish to continue with her pregnancy. However, the Union opposed this, by referring to the new report dated 10.10.2023 submitted by one of the doctors of the medical board. The new report had expressed serious concerns about going ahead with the termination since the foetus has a high chance of survival.

"One of us [Justice Hima Kohli] is not inclined to permit the petitioner to terminate the pregnancy, however, my sister judge [Justice BV Nagarathna] is of a different opinion. That being the position, it is only appropriate that this matter be placed before the Hon'ble Chief Justice to be placed before an appropriate bench," the Justice Kohli said in her order. 

Justice Kohli however expressed her disappointment at the new report filed by a member of the medical committee.  She said that it is 'unfortunate' that on the very next of the order being passed by the court allowing termination based on an earlier report of the committee, a subsequent report has been brought on record stating that the chances of survival of the foetus is high. "All that has been stated and pointed out in the email dated 10.10.2023, ought to have been made part of the earlier report for this court to have had a clearer perspective on the matter. Which would have perhaps had a different connotation," Justice Kohli said in her order. 

Justice BV Nagarathna in a separately recorded order, said that the 'well considered order' authored by Justice Kohli on 9th October does not require to be recalled.  "Having regard to the concrete determination of the petitioner, I find her decision must be respected," Justice Nagarathna said in her order. 

“This is not a case where the question of the viable baby being born or unborn is to be really considered, when the interest of the petitioner must be given more preference. The socio economic situation in which the petitioner is placed, the fact that she has already had two children, then 2nd child being only one year of age and the fact that she has reiterated that the medicines she is taking for her mental condition does not permit her to continue with her pregnancy, I find that her decision must be respected by the Court,” Justice Nagarathna added. 

Additional Solicitor General Aishwarya Bhati opposing the termination said "Once there is a viable baby on the other side, your lordships may not give absolute primacy to her (mother's) choice."

Background 

On Monday (09.10.2023), the Special Bench had permitted the petitioner to terminate her pregnancy at 26 weeks. The bench had stated–

"This Court does recognise the right of a woman over her body and the fact that if an unwarranted pregnancy results in a child being brought into the world, a large part of the responsibility of rearing such a child will fall on the shoulder of the petitioner, which at this point she doesn't consider herself fit for". 

Justice Nagarathna said that she was ‘disturbed and concerned’ by the action of the Union approaching the Chief Justice for interference of an order passed by another bench without filing an application for the same. Justice Nagarathna expressed her concern that if such a precedent is set there will be a breakdown of the system of the court.

When the special bench had assembled in the morning, it had perused the new medical report which had expressed concerns about going ahead with the termination since the foetus has a chance of survival. “Why wasn’t the earlier report not more elaborate and candid? They could’ve said this earlier and the court would have taken notice of it, because we ourselves rely on the report. Which court would say stop the heartbeat of a foetus which has a life? Speaking for myself, I wouldn’t. If this was the stand they (the medical board) had to take, they could’ve had said this at that point of time,” Justice Kohli said to the Union.