# 13 (ADDL.) S.C.R. 989 ~ SUCHITA SRIVASTAVA & ANR v. CHANDIGARH ADMINISTRATION

- **Citation:** [2009] 13 S.C.R. 989
- **Court:** Supreme Court of India
- **Decided:** 2009-08-28
- **Case number:** Civil Appeal No.5845 of 2009
- **Bench:** K.G. Balakrishnan, P. Sathasivam, Dr. -.( B.S. Chauhan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/13-addl-s-c-r-989-suchita-srivastava-anr-v-chandigarh-administration-25174
- **Pages:** 33

## Headnote

\"
MEDICAL TERM/NATION OF PREGNANCY ACT,
1971:
c
ss. 3(4)(a) and (b)- Termination of pregnancy by medical
practitioners in certain cases - Mentally retarded orphan in
a Government run welfare home -Found pregnant - Petition
_;,
by administration seeking approval to terminate the D
-r
pregnancy- Report of expert body that the ~rphan was in mild
to moderate mental retardation and was willing to bear a child
- High Court granting approval to terminate the pregnancy -
Held: The statute clearly contemplates that even a mentally
retarded woman should give her consent for termination of the
pregnancy - State must respect personal autonomy of a E
mentally retarded woman with regard to decisions about
:(
terminating a pregnancy - A woman's right to make
reproductive choices is also a dimension of 'personal liberty'
;..
under Article 21 of the Constitution - In view of the findings
of expert body in favour of continuation of the pregnancy, the
F
· direction given by High Court to terminate the pregnancy was
not in victim's 'best interests' - It is directed that the bes(
medical facilities be made available to the victim so as to
ensure proper care and supervision during the period of
pregnancy as well as for post natal care - Constitution of G
India, 1950 - Article 21 - United Nations Declaration on the
Rights of Mentally Retarded Persons, 1971 - Principle 7.
ss.2(b) and 3(4)(a) - 'Mentally ill person' - Held: Is
different from a person who is in mental retardation ....
989
H
990 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.
A, Legislative provisions clearly show that persons who are in a
condition of mental retardation should ordinarily be treated
differently from those who are mentally ill - Persons with
Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995 - ss.2(i), (q) and (r).
B
s. 3(4)(a) -
Consent of guardian for terminating
pregnancy of a minor/mentally ill person - HELD: While a
guardian can make decisions on behalf of a 'mentally ill
person' the same cannot be done on behalf of a 'mentally
retarded person' - Besides, considering the distinct standards,
C namely 'best interests' and 'substituted judgment test' and the
doctrine of 'Parens Patriae~ in the instant case, 'best interests'·
standard would be applicable and keeping in view the 'best
interests' of the victim,· termination of pregnancy would not
serve the objective - Doctrine of 'Parens Patriae' - Best
D ~interests' and 'substituted judgment' tests.
WORDS AND PHRASES:
Expression 'mental illness' and 'mental retardation' -
Distinction between in the context of Medical Termination of
E Pregnancy Act.
A mentally retarded orphan aged 19-20 years,
sheltered in a governme·nt-run welfare home, was found
·in the 19th week of pregnancy. The respondent
F Administration approached the High court seeking its
approval for termination of the pregnancy. The High
.Court appointed an expert body which gave its findings
that the victim was in mild to moderate mental retardation
and that she expressed her willingness to bear a child.
However, the High Court directed termination of the
G pregnancy.
In the instant appeal, the questions for consideration
before the Court were: (i) whether the victim's pregnancy
could b~ terminated even though she had expressed her
H willingness to bear a child and (ii) whether her 'best
SUCHITA SRIVASTAVA & ANR. v. CHANDIGARH
991
ADMINISTRATION
....._.
interests' would be served by such termination.
A
)(
Disposing of the appeal, the Court
HELD: 1.1. State must respect the personal
autonomy of a mentally retarded woman with regard to
decisions about terminating a pregnancy. A woman's
B
right to make reproductive choices is also a dimension
of 'personal liberty' as understood under Article 21 of the
Constitution of India. It is important to recognise that
reproductive choices can be exercised to procreate as
well as to abstain from procreating. The crucial C
consideration is that a woman's right to privacy, dignity
and bo

## Text

_Characters 0–39,865 of 64,913. This is a partial read: ask again with offset=39865 for what follows._

[2009] 13 (ADDL.) S.C.R. 989
~
SUCHITA SRIVASTAVA & ANR.
A
v.
CHANDIGARH ADMINISTRATION
(Civil Appeal No.5845 of 2009)
AUGUST 28, 2009
B
[K.G. BALAKRISHNAN, CJI., P. SATHASIVAM AND DR.
-.(
B.S. CHAUHAN, JJ.]
\"
MEDICAL TERM/NATION OF PREGNANCY ACT,
1971:
c
ss. 3(4)(a) and (b)- Termination of pregnancy by medical
practitioners in certain cases - Mentally retarded orphan in
a Government run welfare home -Found pregnant - Petition
_;,
by administration seeking approval to terminate the D
-r
pregnancy- Report of expert body that the ~rphan was in mild
to moderate mental retardation and was willing to bear a child
- High Court granting approval to terminate the pregnancy -
Held: The statute clearly contemplates that even a mentally
retarded woman should give her consent for termination of the
pregnancy - State must respect personal autonomy of a E
mentally retarded woman with regard to decisions about
:(
terminating a pregnancy - A woman's right to make
reproductive choices is also a dimension of 'personal liberty'
;..
under Article 21 of the Constitution - In view of the findings
of expert body in favour of continuation of the pregnancy, the
F
· direction given by High Court to terminate the pregnancy was
not in victim's 'best interests' - It is directed that the bes(
medical facilities be made available to the victim so as to
ensure proper care and supervision during the period of
pregnancy as well as for post natal care - Constitution of G
India, 1950 - Article 21 - United Nations Declaration on the
Rights of Mentally Retarded Persons, 1971 - Principle 7.
ss.2(b) and 3(4)(a) - 'Mentally ill person' - Held: Is
different from a person who is in mental retardation ....
989
H
990 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.
A, Legislative provisions clearly show that persons who are in a
condition of mental retardation should ordinarily be treated
differently from those who are mentally ill - Persons with
Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995 - ss.2(i), (q) and (r).
B
s. 3(4)(a) -
Consent of guardian for terminating
pregnancy of a minor/mentally ill person - HELD: While a
guardian can make decisions on behalf of a 'mentally ill
person' the same cannot be done on behalf of a 'mentally
retarded person' - Besides, considering the distinct standards,
C namely 'best interests' and 'substituted judgment test' and the
doctrine of 'Parens Patriae~ in the instant case, 'best interests'·
standard would be applicable and keeping in view the 'best
interests' of the victim,· termination of pregnancy would not
serve the objective - Doctrine of 'Parens Patriae' - Best
D ~interests' and 'substituted judgment' tests.
WORDS AND PHRASES:
Expression 'mental illness' and 'mental retardation' -
Distinction between in the context of Medical Termination of
E Pregnancy Act.
A mentally retarded orphan aged 19-20 years,
sheltered in a governme·nt-run welfare home, was found
·in the 19th week of pregnancy. The respondent
F Administration approached the High court seeking its
approval for termination of the pregnancy. The High
.Court appointed an expert body which gave its findings
that the victim was in mild to moderate mental retardation
and that she expressed her willingness to bear a child.
However, the High Court directed termination of the
G pregnancy.
In the instant appeal, the questions for consideration
before the Court were: (i) whether the victim's pregnancy
could b~ terminated even though she had expressed her
H willingness to bear a child and (ii) whether her 'best
SUCHITA SRIVASTAVA & ANR. v. CHANDIGARH
991
ADMINISTRATION
....._.
interests' would be served by such termination.
A
)(
Disposing of the appeal, the Court
HELD: 1.1. State must respect the personal
autonomy of a mentally retarded woman with regard to
decisions about terminating a pregnancy. A woman's
B
right to make reproductive choices is also a dimension
of 'personal liberty' as understood under Article 21 of the
Constitution of India. It is important to recognise that
reproductive choices can be exercised to procreate as
well as to abstain from procreating. The crucial C
consideration is that a woman's right to privacy, dignity
and bodily integrity should be respected. [Para 11 and 15]
[1008-G-H; 1011-G-H]
1.2. Section 3(4)(b) of the Medical Termination of
Pregnancy Act, 1971 clearly lays down that obtaining the
D
consent of the pregnant woman is indeed an essential
condition for proceeding with the termination of her
pregnancy. A dilution of this requirement of consent
cannot be permitted since the same would amount to an
arbitrary and unreasonable restriction on the
E
reproductive rights of the victim. Section 3 of MPT Act
makes it clear that ordinarily a pregnancy can be
terminated only in terms of the said section. When the
pregnant woman is below eighteen years of age or is a
'mentally ill' person, the pregnancy can be terminated if F
the guardian of the pregnant woman gives consent for
the same. [Para 12] [1009-G-H; 1010-A-B]
1.3. It is apparent from the definition of the
expression 'mentally ill person', as provided in s.2(b) of
MTP Act, that 'mental illness' is different from 'mental G
retardation'. A similar distinction can also be found in the
provisions of the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation)
Act, 1995. Clause (i) of s.2 of the said Act while defining
'disability' categorises 'mental retardation' differently H
992
SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.
A than 'mental illness'; and further, clause (q) of s.2 defines
_........._
'mental illness' whereas clause (r) thereof defines 'mental
retardation' distinctly. Thus, the legislative provisions
clearly show that persons who are in a condition of
'mental retardation' should ordinarily be treated
B differently from those who are found to be 'mentally ill'.
While a guardian can make decisions on behalf a
'mentally ill person' as per s.3(4)(a) of the MTP Act, the
same cannot be done on behalf of a person who is in a
'fcondition of 'mental retardation'. [Para 14 and 15] (1011-
-f
c A-F]
1.4. While the distinction between the statutory
categories of 'mentally ill' and 'mentally retarded' can be
collapsed for the purpose of provjding affirmative action
in public employment and education as well as for
-D implementing discrimination measures and empowering
.\--
the respective classes of persons, the same distinction
,.....
cannot be disregarded so as to interfere with the
personal autonomy that has been accorded to mentally
~
retarded persons for exercising their reproductive rights.
E (Para 16] (1012-E-G]
1.5. 1n the case of pregnant women there is also a
'compelling State interest' in protecting the life of the
x
prospective child. Therefore, the termination of a
pregnancy is only permitted when the conditions
~
F specified in the applicable statute have been fulfilled.
--
Thus, the provisions of the MTP Act, 1971 can also be
viewed as reasonable restrictions that have been placed
on the exercise of reproductive choices. [Para 11) [1009 ..
C-0)
•
G
1.6. The principles contained in the United Nations
Declaration on the Rights of Mentally Retarded Persons, r
>
1971 (G.A. Res. 2856 (XXVI) of 20 December, 1971), and
specially Principle 7, prescribe that a fair procedure
.....
should be used for the 'restriction or denial' of the rights
H guaranteed to mentally retarded persons, which should
\
SUCHITA SRIVASTAVA & ANR. v. CHANDIGARH
993
ADMINISTRATION
ordinarily be the same as those given to other human
A
beings. While respecting the personal autonomy of
mentally retarded persons with regard to the
reproductive choice of continuing or terminating a
pregnancy, the MTP Act lays down such a procedure. It
is also significant to note that India has ratified the
B•
Convention on the Rights of Persons with Disabilities on
October 1, 2007 and the contents of the same are binding
on our legal system. [Paras 25 and 26] [1017-0-E; 1018F-H]
2.1. The doctrine of 'Parens Patriae' has been evolved
C
in common law and is applied in situations where the
State must make decisions in order to protect the
interests of those persons who are unable to take care
of themselves. Courts in other common law jurisdictions
have developed two distinct standards, namely, the 'best c
interests' test and the 'substituted judgment' test. The
'best interests' test requires the court to ascertain the
course of action which would serve the best interests of
the person in question. In the context of the instant case,
this means that the court must undertake a careful
E:
inquiry of the medical opinion on the feasibility of the
pregnancy as well as social circumstances faced by the
victim. It is important to note that the court's decision
should be guided by the interests of the victim alone and
not those of other stakeholders such as guardians or
society in general. It is evident that the woman in question
f"'
will need care and assistance which will in turn entail
some costs. However, that cannot be a ground .for
denying the e~ercise of reproductive rights. [Para 18 and
19] [1013-C-H]
2.2. The application of the 'substituted judgment' test
requires the court to step into the shoes of a person who
(
is considered to be mentally incapable and attempt to
make the decision which the said person would have
made, if she was competent to do so. This test can only
~
994
SUPREME COURT REPORTS (2009] 13 (ADDL.) S.C.R.
A be applied to make decisions on behalf of persons who
~
are conclusively shown to be mentally incompetent. In
the. instaht case the victim has been described as a
person suffering from 'mild mental retardation'. This does
not mean that she is entirely incapable of making
B decisions for herself. The findings recorded by the expert
body indicate that her mental age is close to that of a nineyear old child and that she is capable of learning through
';-
rote-memorisation and imitation. Even the preliminary
~
medical opinion indicated that she had learnt to perform
c basic bodily functions and was capable of simple
communications. In light of these findings, it is the 'best
interests' test alone which should govern the inquiry In
the instant case and not the 'substituted judgment' test.
[Para 20] [1014-A-D].
.. 2.3. Besides, persons with borderline mild or
~
D
moderate mental retardation are capable of living in
.,.__.
normal social conditions even though they may need
'
some supervision and assistance from time to time. A
developmental delay in mental intelligence should not be
E equated with mental incapacity and as far as possible the
law should respect the decisions made by persons who
are found to be in a state of mild to moderate 'mental
retardation'. [Para 21] [1014-F-G]
~
3.1. In the instant case, the victim has expressed her
·~
IF willingness to carry the pregnancy till its full term and
•
bear a child. As per the findings of the expert body, the
victim is physically capable of continuing with the
pregnancy and the possible risks to her physical health
are similar to those of any other expecting mother. There
"" is also no indication that the prospective child may be
..;J born with any congenital defects. At the time of the order
{'
dated 17.7.2009 passed by the High Court, the victim ttad
already been pregnant for almost 19 weeks. By the time
the matter was heard by this Court on an urgent basis
-I
on 21.7.2009, the statutory limit for terminating a
SUCHITA SRIVASTAVA & ANR. v. CHANDIGARH
995
ADMINISTRATION
pregnancy, i.e. 20 weeks, was fast approaching. There is A
~-
a clear medical consensus that an abortion performed
during the later stages of a pregnancy is very likely to
cause harm to the physical health of the woman who
undergoes the same. [Para 22 and 23] [1014-H; 1015-AC-F-G]
8
Roe v. Wade, 410 US 113 (1973), referred to.
3.2. In view of the fact that the expert body's findings
were in favour of continuation of the pregnancy and that
the victim had clearly expressed her willingness to bear c
a child, the High Court erred in directing termination of
the same. This is because the applicable statute clearly
contemplates that even a woman who is found to be
'mentally retarded' should give her consent for the
termination of a pregnancy. Thus, the direction given by
D
"'
the High Court in jts order dated 17. 7 .2009 to terminate
...,.
the victim's pregnancy was not in pursuance of her 'be$t
interests'. Performing an abortion at such a late-stage
· could have endangered the victims' physical health and
the same could have also caused further mental anguish
to the victim since she had not ~onsented to such a E
procedure. [Para 10 and 24] [1006-G-H; 1007-A-B; 1011A-BJ
'X
United Nations Declaration on the Rights of Mentally
'
Retarded Persons, 1971 [G.A. Res. 2856 (XXVI) of 20
F
December, 1971; Convention on the Rights of Persons with
rDisabilities (CRPD) and 'Whose Egg is it anyway?
Reproductive Rights of Incarcerated, Institutionalized and
Incompetent Women', 13 Nova Law Review 405-456
(November 1989) by Susan Stefan, referred to.
4.1. It would also be proper to emphasize that G
~
persons who are found to be in a condition of borderline,
l
mild or moderate mental retardation are capable of being
good parents. Therefore, it is important to evaluate each ·
case in a thorough manner with· due weightage being
H
given to medical opinion for deciding whether a mentally
996
SUPREME COURT REPORTS [2009) 13 (ADDL.) S.C.R.
A retarded person is capable of performing parental
4
responsibilities. [Para 28] [1019-F-G; 1020-8-D]
'Sterilization of Mentally Retarded Persons: Reproductive
Rights and Family Privacy', Duke Law Journal 806-865
B
(November 1986) by Elizabeth C. Scott, referred to.
4.2. As regards victim's mental capacity to cope with
the demands of carrying the pregnancy to its full term,
the act of delivering a child and subsequent childcare, it
'fis directed that the best medical facilities be made
-1
c available so as to ensure proper care and supervision
during the period of pregnancy as well as for post-natal
care. Since there is an apprehension that the woman in
question may find it difficult to cope with maternal
responsibilities, the Chairperson of the National Trust for
D
Welfare of Persons with Autism, Cerebral Palsy, Mental
Retardation and Multiple Disabilities constituted under
).;-
the similarly named 1999 Act has stated in an affidavit that
't""-
the said Trust is in coordination with Chandigarh
Administration and PGIMER, Chandigarh, and is prepared
to look after the interests of the woman in question which
E will include assistance with childcare. If any grievances
arise with respect to the same subject matter in the future,
the respondent can seek directions from the High Court
of Punjab and Haryana under its writ jurisdiction. [Para
~
31] [1021-C-G]
F
'~
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
..,
5845 of 2009.
From the Judgment & Order dated 9.6.2009 and
17. 7.2009 of the High Court of Punjab & Haryana at
G Chandigarh in CWP No. 8760 of 2009.
Colin Gonsalves, Tanu Bedi, D.P. Singh, Sanjay Jain,
r
Suchita Srivastava, Kamini Jaiswal, Anupam Gupta, Ashish
Rawal for the appearing parties.
H
The following order of the Court was delivered by
SUCHITA SRIVASTAVA & ANR. v. CHANDIGARH
997
ADMINISTRATION
~~
ORDER
A
K.G. BALAKRISHNAN, CJI. 1. Leave granted.
2. A Division Bench of the High Court of Punjab and
Haryana in C.W.P. No. 8760 of 2009, by orders dated 9.6.2009
B
and 17.7.2009, ruled that it was in the best interests of a
mentally retarded woman to undergo an abortion. The said
-¥
woman (name withheld, hereinafter 'victim') had become
\-
pregnant as a result of an alleged rape that took place while
she was an inmate at a government-run welfare institution
located in Chandigarh. After the discovery of her pregnancy, c
the Chandigarh Administration, which is the respondent in this
case, had approached the High Court seeking approval for the
termination of her pregnancy, keeping in mind that in addition
!
to being mentally retarded she was also an orphan who did not
""'
have any parent or guardian to look after her or her prospective D
child. The High Court had the opportunity to peruse a
......,
preliminary medical opinion and chose to constitute an Expert
Body consisting of medical experts and a judicial officer for the
purpose of a more thorough inquiry into the facts. In its order
dated 9.6.2009, the High Court framed a comprehensive set
E
of questions that were to be answered by the Expert Body. In
such cases, the presumption is that the findings of the Expert
Body would be given due weightage in arriving at a decision.
)'
However, in its order dated 17.7.2009 the High Court directed
, the termination of the pregnancy in spite of the Expert Body's
findings which show that the victim had expressed her
F
willingness to bear a child.
3. Aggrieved by these orders, the appellants moved this
Court and the second appellant - Ms. Tanu Bedi, Adv.
appeared in person on 20.7.2009 and sought a hearing on an
G
urgent ba5's because the woman in question had been
~
pregnant for more than 19 weeks at that point of time. We
agreed to the same since the statutory limit for permitting the
termination of a pregnancy, i.e. 20 weeks was fast
approaching. We issued notice to the Chandigarh
H
998 SUPREME COURT REPORT~ [2009] 13 (ADDL.) S.C.R.
A Administration, pursuant to which Mr. Anupam Gupta, Adv.
~
appeared before us and made oral submissions on behalf of
the respondent. In the regular hearing held on 21.7.2009, both
sides presenting compelling reasons in support of their
respective stands. Mr. Colin Gonsalves, Sr. Adv. also appeared
B on behalf of an intervenor in support of the Chandigarh
Administration's stand. After hearing the counsel at length we
had also considered the opinions of some of the medical
experts who had previously examined the woman in question.
ySubsequent to the oral submissions made by the counsel ~nd
-f
c the medical experts, we had granted a stay on the High Cpurt's
orders thereby ruling against the termination of the pregnancy.
4. The rationale behind our decision hinges on two broad
considerations. The first consideration is whether it was correct
on part of the High Court to direct the termination of pregnancy
D without the consent of the woman in question. This was the
~
foremost issue since a plain reading of the relevant. provision
~
in the Medical Termination of Pregnancy Act, 1971 . clearly
indicates that consent is an essential condition for performing
an abortion on a woman who has attained the age of majority
E and does not suffer from any 'mental illness'. As will be
explained below, there is a clear distinction between 'mental
illness' and 'mental retardation' for the purpose of this statute.
~
The second consideration before us is that even if the said
~
woman was assumed to be mentally incapable of making an
informed decision, what are the appropriate standards for a
'"'
F Court to exercise 'Parens Patriae' jurisdiction? If the intent was
to ascertain the 'best interests' of the woman in question, it is
our considered opinion that the direction for termination of
pregnancy did not serve that objective. Of special importance
is the fact that at the time of hearing, the woman had already
G been pregnant for more than 19 weeks and there is a medicolegal consensus that a late-term abortion can endanger the
r
health of the woman who undergoes the same.
5. Before explaining both of the above-mentioned
H
considerations at length, it will be useful to present an overview
SUCHITA SRIVASTAVA & ANR. v. CHANDIGARH
999
ADMINISTRATION [K.G. BALAKRISHNAN, CJI.]
of the fact-situation which led to the present proceeding. The
A
+--
woman in question is an orphan who had been abandoned by
her parents at an early age and subsequently she had been
under the guardianship of the Missionaries of Charity, New
Delhi. Thereafter, she had been admitted in the Government
Institute for Mentally Retarded Children located in Sector 32,
Chandigarh and was later on brought to the 'Nari Niketan' a
B
welfare institution in Sector 26, Chandigarh. On 13.3.2009, she
~
was shifted to 'Ashreya' - a newly established welfare
\
institution. Both 'Nari Niketan' and 'Ashreya' are governmentrun institutions run by the Chandigarh Administration which fall c
under the administrative control of the Director, Social Welfare
and the Director-Principal, Government Medical College and
Hospital (GMCH), Sector 32, Chandigarh respectively.
~
6. On 16.5.2009, a medical social worker and a staff nurse
.,;..
working at 'Ashreya' observed that the victim was showing D
signs of nausea and had complained about pain in her lower
.....,.
abdomen in addition to disclosing the fact that she had missed
her last two menstrual periods. Acting on their own initiative,
the medical social worker and the staff nurse conducted a
pregnancy test with a urine sample and found it to be positive.
E
Following this development, a medical board consisting of two
gynaecologists and a radiologist was constituted on 18.5.2009.
The gynaecologists then examined the victim in a clinical
)'
environment and concluded that she had been pregnant for 8-
'
10 weeks at the time. The radiologist also confirmed the fact
F
of pregnancy on the basis of an ultrasound examination and
recorded a gestation of approximately 9 weeks on the same
day.
7. After the discovery of the pregnancy, the concerned
authorities had informed the Chandigarh Police who filed FIR
G
No. 155 (dated 18.5.2009) under Sections 376 and 1208 of
~
the Indian Penal Code at the Police Station located in Sector
!
26, Chandigarh. Subsequently, an ossification test conducted
on the victim on 20.5.2009 had indicated her bone age to be
-1
around 19-20 years. The Director-Principal of the GMCH
'
H
~
1000 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.
A thereafter constituted a three member medical board on
I
25.5.2009 whiGh was headed by the Chairperson of the
---+
I
Department of Psychiatry in the said :hospital. Their task was
to evaluate the mental status of the victim and they opined that
the victim's condition was that of 'mild mental retardation'.
B Thereafter another multi-disciplinary medical board was.
constituted ~Y the same authority which consisted of a
gynaecologist, a radiologist, a paediatrician and a psychiatrist.
This board was asked 'to submit its considered opinion as to
¥-
the consequences of continuation of pregnancy and the
-f
c capability of the victim to cope with the same'. Board's opinion
was submitted on 27.5.2009, which recommended the
termination of the victim's pregnancy.
'
8. Since there was no clear statutory basis for proceeding
with the abortion, the Chandigarh Administration moved the High
.. ,.
D Court of Punjab and Haryana seeking a judicial opinion on the
~
said matter. In its order dated 9.6.2009 the High Court had
taken note of the opinion given by the multi-disciplinary medical
1-·
board on 27.5.2009. However, as a measure of abundant
caution the High Court directed the authorities to constitute an
E Expert Body consisting of medical experts and framed a set
of questioi:-s to be answered by this Body. The High Court
stressed on the need for ensuring that this Expert Body would
be independent from the administrative control 9r any form of
influence by the Chandigarh Administration. The intention was
'f
that the Expert Body's findings would enab!e the High Court to
'
F ascertain the 'best interests' of the womar. in question. In
pursuance of these directions, the Director of the f?ost Graduate
Institute of Medical Education and Research (PGIMER),
Chandigarh constituted an expert body comprising of (1) Dr.
Ajit Awasthi, Department of Psychiatry (2) Dr. Savita Kumari,
G Department of Internal Medicine -(3) Dr. Vanita Jain,
Department of Obstetrics and Gynaecology, and (4) Dr. Meenu
Singh, Department of Paediatrics. The High Court had also
f
directed Smt. Raj Rahul Garg, Additional District and Sessions
,.
Judge, Chandigarh to act as the member-cum-coordinator of
1
H the Expert Body.
t
SUCHITA SRIVASTAVA & ANR. v. CHANDIGARH
1001
ADMINISTRATION [K.G. BALAKRISHNAN, CJI.]
9. At this juncture, it would be pertinent to refer to the
A
Expert Body's findings which were duly recorded by the High
Court in its order dated 17.7.2009. The text of the same is
reproduced below:
Question framed by High
Court in its order dated
9.6.2009 in C.W.P.
8760 of· 2009
Expert Body's findings .
(i)The mental condition of the She suffers from mild to
B
retardee
moderate mental retardation
C
(ii) Her mental and physical A case of mild to moderate
condition and ability for selfmental retardation,
sustenance
Pregnant: Single live foetus
corresponding to 13 weeks
3 days +/- 2 weeks, Postoperative scars for spinal
surgery, HbsAG positive.
(iii) Her understanding about
the distinction between the
child born out of and outside
the wedlock as well as the
social connotations attached
thereto.
Her mental status affects her
ability for independent sociooccupational functioning and
self-sustenance. She would
need
supervision ·and
assistance.
As per her mental status,
she is incapable of making
the distinction between a
c~ild born before or after
marriage or outside the
wedlock and is unable to
understand
the
social
connotations
attached
thereto.
D
E
F
G
H
A
B
c
D
E
F
1002 SUPREME COURT REPORTS [2009) 13 (ADDL.) S.C.R.
I
..,
·<'
i
(iv)
Her
capability
to
acknowledge the present and
consequences of her own
future and that of the child she
is bearing
(v) Her m'ental and physical
capacity to bear and raise a
child
(vi) Her perception about
bringing up a child and the role
of an ideal mother
She knows that she is
bearing a child and, is keen
to have one. However, she
is unable to appreciate and
understand
the
consequences of her own
future and that of the child
she is bearing.
She is a young primigravida
with abnormalities of gait
and spinal deformity and
Hepatitis B surface antigen
positive status. However, she
has adequate physical
capacity to bear and raise a
child.
--
She is a case of mild to
moderate mental retardation
which often limits the mental
capacity to bear and raise a
child in the absence of
adequate social support and
supervision
She has grossly limited
perception about bringing up
a child and the role of an
ideal mother
G
(vii) Does
0she believe that she
She
has
a
limited
has been impregnated through
understanding of the sexual
unvolunteered sex?
act and relationship and
{
even the concept of getting
pregnant. She did not
H
volunteer for sex and did not
I
Ii-
"\
SUCHITA SRIVASTAVA & ANR. v. CHANDIGARH
1003
ADMINISTRATION [K.G. BALAKRISHNAN, CJI.]
(viii) Is she upset and/or
anguished on account of the
pregnancy alleged to have
been caused by way of rape/
un-willing sex?
(ix) Is there any risk of injury to
the physical or mental health of
the victim on account of her
present
foreseeable
environment?
like the sexual act.
She has no particular
emotions on account of the
pregnancy alleged to have
been caused by way of rape/
un-willing sex. She is happy
with the idea that she has a
baby inside her and looks
forward to seeing the same.
Her internal environment of
pregnancy does not pose
any particular risk of injury to
the physical health of _the
victim. Her mental health. can
be further affected by the
stress of bearing and raising
a child.
Her external environment in
A
B
c
D
terms of her place of stay
E
(x) Is there any possibility of
exerting undue Influence
through any means on the
decision-making capability of
the victim?,
and the support available
thereof
is
difficult
to
comment on because of our
lack of familiarity with the
same. She definitely needs a
F
congenial and supportive
environment for her as well
as for the safety of the
pregnancy.
Her mental state indicates
high suggestibility because
of her reliance on rote
memory
and
imitative
behaviour for learning. Being
G
H
1004 SUPREME COURT REPORTS (2009] 13 (ADDL.) S.C.R.
A
highly suggestible her
decision-making can be
--.Jr
easily influenced.
B
(xi) Do the overall surroundings We are not familiar with her
provide reasonable space to overall surroundings, hence
the victim to indulge in unable to comment.
independent thinking process
c
and take firm decisions on the
issues vital to her life
prospects?
(xii) What is the possible
nature of the major spinal
surgery. alleged to have been
. undergone by the victim during
D
her childhood? Does it directly
or indirectly relate to the bony
abnormalities of the victim?
Can such abnormalities have a
genetic basis to be inherited
E
by the baby?
F
G
H
As per the neurosurgeo_r:i_._
spinal
surgery
during
childhood could have been
due to neural tube defect or
spinal cord tumour. This
could have been confirmed
by MRI tests, but the same
could not be carried through
as those were considered to
be potentially hazardous for
the foetus. There is no history
I records available for the
spinal surgery, hence, the
safety profile issues relevant
for the patient undergoing
MRI like the possibility of use
of any mental screws to . fix
the spine wherein MRI can
be hazardous cannot be
definitely commented upon
in this case. The neural tube
defect in the patient can lead
to an increased chance of
neural tube defect in the
baby.
However,
these
-
SUCHITA SRIVASTAVA & ANR. v. CHANDIGARH
1005
ADMINISTRATION [K.G BALAKRISHNAN, CJI.]
defects can be detected by
A
blood tests of the mother and
ultrasound. Presence of
neural tube defect in the
parent is not an indication for
termination of pregnancy. It is , B
not possible to comment on
the inheritance of spinal cord
tumours without knowing the
exact nature of the tumour.
(xiii) Is there a genuine The
possibility
of
possibility
of
certain complications like abortion,
complications like chances of hypertension, prematurity,
abortion,
anaemia, low birth weight baby andhypertension, prematurity, low foetal distress are similar to
birth weight baby, foetal any pregnancy in a woman of
distress including chanees of this age group.
anaesthetic complications, if
the victim in the present case
is permitted tor carry on the
pregnancy?
Due to the spinal abnormality
and gait defect she has a
higher chance of operative
delivery and associated
anaesthetic complications.
Spinal
and
gait
abnormalities are not an
indication for termination of
pregnancy.
Pregnancy in women with
Hepatitis B surface antigen
positive status is usually
uneventful. The prenatal
transmission from mother to
infant can be prevented by
giving immunoprophylaxis to
the neonate. Acute or
c
D
E
F
G
H
A
B
c
D
F .
1006 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.
(xiv) What can be .the most
prudent course to be followed
in the best interest of the
victim?
~·
. '• .. , .
Her physical status poses no
major
physical
contraindications to continue
with the pregnancy. The
health of foetus can be
monitored for any major
congenital defects. Her
mental
state · indicates
limited mental capacity
[intellectual,· social adaptive
and emotional capacity] to
bear and raise the child.
Social .support ~nd care fo~
both the mother and the child .
. _is
.
anoth~r
. crucial
component. Therefore, ,any
decision that is tak'en
keeping her best interests in ·
·mind a$ we)I as those of her
unborn child ..::.. has to be :
based on
the holistic
assessment of physical,
psychological and social
parameters.
TERMINATION
OF
PREGNANCY
CANNOT
BE
G PERMITTED WITHOUT THE CONSENT OF THE VICTIM
1.N r.H1·s· CAs . e ·· ·
·A~ -~
•
~·-
10. Even though the Expert Body's findings were in favour
of continuation of the pregnancy, the High Court decided to
direct the termination of the same in its order dated 17. 7.2009.
H · We dls'agree with this conclusion since the victim had clearly_
~--
SUCHITA SRIVASTAVA & ANR. v. CHANDIGARH
1007
ADMINISTRATION [K.G. BALAKRISHNAN, CJI.]
-J.~-
expressed her willingness to bear a child. Her reproductive
A
choice should be respected in spite of other factors such as
the lack of understanding of the sexual act as well as
apprehensions about her capacity to carry the pregnancy to its
full term and the assumption of maternal responsibilities
thereafter. We have adopted this position since the applicable
statute clearly contemplates that even a woman who is found
B
i
to be 'mentally retarded' should give her consent for the
termination of a pregnancy. In this regard we must stress upon
,
· the language of Section 3 of the Medical Termination of
Pregnancy Act, 1971 [Hereinafter also referred to as 'MTP c
Act'] which reads as follows:-
"3. When pregnancies may be terminated by registered
-
medical practitioners. - ( 1) Notwithstanding anything
---.
contained in the Indian Penal Code [45 of 1860), a
...J....
registered medical practitioner shall not be guilty of any D
,.__,,
offence under that Code or under any other law for the time
being in force, if any, pregnancy is, terminated by him in
-"'
accordance with the provisions Of this Act.
(2) Subject to the provisions of sub-section (4), a
pregnancy may be terminated by a registered medical
practitioner:-
E
)-
(a) where the length of the pregnancy does not exceed
twelve weeks, if such medical practitioner is, or
~
(b) where the length of the pregnancy exceeds twelve
..
F
weeks but does not exceed twenty weeks, if not less than
two registered medical practitioners are,
_.
of opinion, formed in good faith, that -
(i)
the continuance of the pregnancy would involve a
risk to the life of the pregnant woman or of grave G
~
inju,ry to her physical or mental health; or
'
-
•
•
1
•
, ~
·.
j
•
'
' '
:·
Ii.
(ii)
there is a substantial risk that if the child were born,
it would suffer from such. physical or mental
abnormalities as to be seriously handicapped,
H
1008 SUPREME COURT REPORTS [2009) 13 (ADDL.) S.C.R.
A
Explanation 1. - Where any pregnancy is alleged by the
--~
pregnant woman to have been caused by rape, the
anguish caused by such pregnancy shall be presumed to·
constitute a grave injury to the mental health of the pregnant
woman.
B
Explanation 2. - Where any pregnancy occurs as a result
of failure of any device or method used by any married
woman or her husband for the purpose of limiting ttie
t--
number of children, the anguish caused by such unwanted
,
pregnancy may be presumed to constitute a grave injury
c
to the mental health of the pregnant woman.
'
(3) In determining whether the continuance of a pregnancy
would involve such risk of injury to the health as is
mentioned In sub-section (2),_ account may be taken of the
\
pregnant woman s actual or reasonable foreseeable
D
environment.
+
(4) (a) No pregnanty of a woman who has not attained the
-.-
age of eighteen years, or, who, having attained the age of
-
eighteen years, is a mentally ill person, shall be terminated
except with the consent in writing of her guardian.
E
(b) Save as otherwise provided in clause (a), no pregnancy
shall be terminated O}\~pt with the consent of the pregnant
woman."
...,
11. A plain reading.of the above-quoted provision makes
.,
F it clear that Indian law allows for abortion only if the specified
-
conditions are met. When the MTP Act was first enacted in
1971 it was largely modelled on the Abortion Act of 1967 which--
had been passed in the Uitited Kingdom. The legislative intent
was to provide a qualified 'right to abortion' and the termination
-
G of pregnancy has never been recognised as a normal recourse
for expecting mothers. There is no doubt that a womari;s. right ·
to make reproductive choices is also a dimension of 'personal
r
liberty' as understood under Article 21 of the Constitution of
India. It is important to recognise that reproductive choices ean
be exercised to procreate as well as to abstain from
H
SUCHITA SRIVASTAVA & ANR. v. CHANDIGARH
1009
ADMINISTRATION [K.G .. BALAKRISHNAN, CJI.)
procreating. The crucial consideration is that a woman's right
A
--..-
to privacy, dignity and bodily integrity should be respected. This
means that there should be no restriction whatsoever on the
exercise of reproductive choices such as a woman's right to
refuse participation in sexual activity or alternatively the
insistence on use of contraceptive methods. Furthermore,
B
women are also free to choose birth-control methods such as
undergoing sterilisation procedures. Taken to their logical
·-i
conclusion, reproductive rights include a woman's entitlement
~
to carry a pregnancy to its full term, to give birth and to
.
I
subsequently raise children. However, in the case of pregnant c
women there is also a jcompelling state interest' in protecting
the life of the prospective child. Therefore, the termination of a
pregnancy is only permitted when the conditions specified in
the applicable statute have been fulfilled. Hence, the provisions
of the MTP Act, 1971 can also be viewed as reasonable
,,,}..
restrictions that have been placed on the exercise of D
~....,
reproductive choices.
..
12. A perusal of the above mentioned provision makes it
clear that ordinarily a pregnancy can be terminated only when
a medical practitioner is satisfied that a 'continuance of the
pregnancy would involve a risk to the life of the pregnant woman
E
or of grave injury to her physical or mental health' [as per
Section 3(2)(i)] or when 'there is a substantial risk that if the
)-
child were born, it would suffer from such physical or mental
t
abnormalities as to be seriously handicapped' [as per Section
3(2)(ii)]. While the satisfaction of one medical practitioner is
F
~
required for terminating a pregnancy within twelve weeks of the
gestation period, two medical practitioners must be satisfied
about either of these grounds in order to terminate a pregnancy
between twelve to twenty weeks of the gestation period. The
explanations to this provision have also contemplated the
G
termination of pregnancy when the same is the result of a rape
~
or a failure of birth-control methods since both of these
eventualities have been equated with a 'grave injury to the
mental health' of a woman. In all such circumstances, the
consent of the pregnant woman is an essential requirement for
proceeding with the termination of pregnancy. This position has
H
1010 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R
A been unambiguously stated in Section 3(4)(b) of the MTP Act,
-~
1971. The exceptions to this rule of consent have been laid
down in Section 3(4)(a) of the Act. Section 3(4)(a) lays down
that when the pregnant woman is below eighteen years of age
or is a 'mentally ill' person, the pregnancy can be terminated if
B the guardian of the pregnant woman gives consent for the
same. The only other exception is found in Section 5(1) of the
MTP Act which permits a registered medical practitioner to
·~
proceed with a termination of pregnancy when he/she is of an
opinion formed in good· faith that the same is 'immediately
'
c
necessary to save the life of the pregnant woman'. Clearly, none
of these exceptions are applicable to the present case.
13. In the facts before us, the State could claim that it is
the guardian of the pregnant victim since she is an orphan and
has been placed in government-run welfare institutions.
D However, the State's claim to guardianship cannot be
-l..
mechanically extended in order to make decisions about the
'r·
termination of her pregnancy. An ossification test has revealed
that the physical age of the victim is around 19-20 years. This
..
. conclusively shows that she is not a minor. Furthermore, her
condition has been described as that of 'mild mental
E retardation' which is clearly different from the. condition. of a
'mentally ill person' as c':!~t;:-,1plated by.Section 3(4)(a)of the
MTP Act. It is pertinent to note that the MTP Act had been
1
amended iri 2002, by way of which the word 'lunatic' was
replaced by the expression 'mentally ill person' in Section
1
F 3(4)(a) of the said statute. The said amendment also amended
...
Section.