Medical Termination of Pregnancy Act, 1971 – ss.3(2B), 5 – According to the Petitioner, she did not discover that she was pregnant until after twenty weeks of the pregnancy had elapsed because she had lactational amenorrhea as a result of which breastfeeding women do not menstruate – On undergoing an ultrasound scan, the pregnancy was estimated to be around twenty-four weeks at that time – Attempts to medically terminate the pregnancy failed – Writ petition filed – Petitioner was directed to appear before a Medical Board constituted by the AIIMS, New Delhi – Report submitted – Petition allowed, medical termination of the pregnancy permitted by this Court vide order dtd.09.10.2023 – However, a doctor from AIIMS (who was a member of the Medical Board) emailed Ms. ‘AB’, ASG, stating that the foetus has a strong chance of survival and sought directions from this Court as to whether a foeticide should be carried out – Application for recall of the order dtd.09.10.2023 filed by ASG, heard by the same bench which had heard the petition earlier – Split verdict – Petition listed before the present three judge Bench – A further report called from AIIMS on certain specific issues – Report submitted:
Held: Length of the pregnancy has crossed twenty-four weeks – It is now approximately twenty-six weeks and five days – A medical termination of the pregnancy cannot be permitted as having crossed the statutory limit of twenty-four weeks, the requirements in either of s.3(2B) or s.5 must be met; there are no “substantial foetal abnormalities” diagnosed by a Medical Board, in terms of s.3(2B) – A second medical report was called from AIIMS to ensure that the facts of the case were accurately placed before this Court and no foetal abnormality was detected; and neither of the two reports submitted by the Medical Boards indicate that a termination is immediately necessary to save the life of the Petitioner, in terms of s.5 – Under Article 142, this Court has the power to do complete justice – However, this power may not be attracted in every case – If a medical termination were to be conducted at this stage, the doctors would be faced with a viable foetus – One of the options before this Court, which the email from AIIMS had flagged, was for it to direct the doctors to stop the heartbeat – This Court is averse to issuing a direction of this nature – Petitioner, too, did not wish for this Court to issue such a direction – In the absence of a direction to stop the heartbeat, the viable foetus would be faced with a significant risk of lifelong physical and mental disabilities – Prayer for the medical termination of the pregnancy not acceded to– Application for recall of the order dtd. 09.10.2023 allowed– Delivery will be conducted by AIIMS at the appropriate time– Union Government has undertaken to pay all the medical costs for the delivery and incidental to it– In case, the petitioner is inclined to give the child up for adoption, the Union Government has stated that they shall ensure that this process takes place at the earliest, and in a smooth fashion– Medical Termination of Pregnancy Rules 2003 (as amended in 2021)– Constitution of India– Article 142. [Paras 24-29]
Practice and Procedure – Final judgment/order – Challenge to – Union of India filed application for the recall of the order dtd. 09.10.2023 passed by a two-Judge Bench of this Court, whereby the Petitioner’s writ petition was allowed and medical termination of her pregnancy was permitted, on the ground that one of the doctors on the Medical Board emailed the ASG, seeking a clarification of that order – Nature of the jurisdiction under which the present case is being adjudicated:
Held: Once a judgment or order attains finality, a party seeking to challenge the decision rendered may do so only by invoking the jurisdiction of the court to review the judgment or order; preferring an appeal against the judgment or order (where an appeal lies); or in the case of the Supreme Court, filing a curative petition – 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 dtd.09.10.2023 – No doubt, 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 consisting of Kohli and Nagarathna, JJ agreed to hear the matter – The immense urgency at that time did not permit this Court to address the reasons for doing so which are being addressed presently – Under Article 142, this Court has the power to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it – In the present case, this Court is justified in exercising its jurisdiction u/Article 142 as this is not an ordinary civil case; certain aspects of the case which ought to have been brought to the attention of this Court came to light after the order dtd. 09.10.2023 was passed and 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); and there was immense urgency in this matter – Constitution of India – Article 142 – Medical Termination of Pregnancy Act, 1971 – Medical Termination of Pregnancy Rules, 2003 (as amended in 2021). [Paras 19-22]
Medical Termination of Pregnancy Act, 1971 – ss.3(2)(a), (b) (i); Explanation 1, 2 to s.3(2); s.3(2)(b)(ii) Medical Termination of Pregnancy Rules, 2003 (as amended in 2021) – r.3B:
Held: The MTP Act is a progressive legislation which regulates the manner in which pregnancies may be terminated – MTP Act recognizes the autonomy of the pregnant woman and respects her right to choose the course of her life – The design of the statute makes it evident that saving the life of the pregnant woman is of paramount importance, notwithstanding the length of the pregnancy. [Para 15]
Practice and Procedure – Judgment/order – Application for recall, cannot be entertained except in exceptional circumstances: Held: The reason for the availability of a limited number of routes by which a judgment can be challenged is that there must be quietus to a dispute – Unlimited modes by which judgments or orders can be challenged would result in chaos, uncertainty, and unpredictability – This is also the reason why an application for recall of an order or judgment cannot be entertained by this Court, save and except in exceptional circumstances such as where a party which is directly affected was not served with notice of the proceedings – Otherwise, the hearing and disposal of an application for recall may even have the effect of creating an intra-court appeal, which is impermissible and wholly unknown to this Court. [Para 19] Medical Termination of Pregnancy Act, 1971 – ss.3(2), 5 – Length of the pregnancy – Requirements for termination – Position of law summarized – Medical Termination of Pregnancy Rules, 2003 (as amended in 2021) – rr.3B, 3A (a)(i).
LIST OF CITATIONS AND OTHER REFERENCES
Delhi Admn. v. Gurdip Singh Uban (2000) 7 SCC 296 : [2000] 2 Suppl. SCR 496; X v. Principal Secretary, Department of Health and Family Welfare, GNCTD 2022 SCC OnLine SC 1321; State v. Kalyan Singh (2017)
7 SCC 444: [2017] 6 SCR 946 – referred to.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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