Days after the Supreme Court questioned Gujarat High Court on the aquittals in the Bilkis Bano case, the HC once again drew criticism from the top court, this time for its poor handling of an abortion plea of a rape survivor.
The apex court bench comprising Justices BV Nagarathna and Ujjal Bhuyan had on Saturday criticised the Gujarat High Court for handling the matter in a ‘lackadaisical manner’.
In a hearing on August 17, the single-bench HC had summarily dismissed the woman’s petition, who is 28-week pregnant. This order of dismissal was not uploaded even until August 19, when the apex court heard the petitioner’s appeal. Against this backdrop, the Supreme Court had sought an explanation from the high court registry, after observing that ‘valuable time’ had been lost due to the high court’s approach.
When the matter was taken up again the next day, the top court was informed about another order passed by the single judge on Saturday (August 19), after the Supreme Court heard the matter and passed an order. In the said order, the HC seemingly attempted to clarify that the order of adjournment was granted to enable the counsel to get instructions from the rape survivor on whether she was willing to carry the fetus to term and hand it over to the state’s facility.
The SC bench took great exception to this seemingly ‘clarificatory’ order passed by the Gujarat HC. Justice Nagarathna said, “We do not appreciate the high court’s counterblast to the Supreme Court’s orders. What is happening in the High Court of Gujarat? Do judges reply like this to a superior court’s order? We do not appreciate this. These kinds of attempts are being made by high court judges to circumvent something we have said, like this. There is no need for any judge of the high court to justify its order.”
Justice Ujjal Bhuyan also expressed surprise, asking what was the need for the High Court to pass this ‘suo motu’ order on August 19. Judges do not have to justify their orders by passing a subsequent order, Justice Bhuyan said. He also observed that the HC could not have imposed an unjust condition on a rape survivor, forcing her to bear the child. He said, “The view taken, I’m sorry to say, is against constitutional philosophy. How can you perpetuate unjust conditions and force the rape survivor to undergo pregnancy?”
At this juncture, Solicitor General of India Tushar Mehta appeared before the Court and requested the bench to refrain from making comments about the high court judge, while adding that the petitioner may be granted relief. He requested, “There was some misunderstanding. I think Your Ladyship might leave it at that. Please ignore this. We can request the judge to withdraw this order, on behalf of the government.” “How can we ignore when the state’s counsel has brought this order to our notice?” Justice Nagarathna exclaimed, before repeating, “No judge can counterblast the Supreme Court’s order.”
In the order, the bench observed that while pregnancy in a marriage is an occasion for joy, pregnancy outside marriage, particularly after sexual assault, is injurious to the mental health of a woman. In view of this and after taking note of the medical report which declared her fit to undergo the termination procedure, the court allowed her plea.
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