Today, the Supreme Court criticized the orders of the Gujarat High Court for the way in response to a plea from a rape survivor seeking permission for an abortion.
The bench of Justices BV Nagarathna and Ujjal Bhuyan issued notice on the petition and listed the case on Monday 21.08.2023 and also called a report from the Hospital.
The Gujarat High Court dismissed the request of the victim who is 27-28 weeks pregnant.
The petition has been filed by Vishal Arun Mishra AOR and it was argued by Shashank Singh and Ms. Yogita, Advocates.
The Supreme Court while hearing the petition made certain observations against the High Court also since the High Court was very lethargic on the issue.
Today, during the proceedings, the Supreme Court was apprised of another order issued by the single judge on Saturday, after the Supreme Court passed an order.
In the said order, it appears that the Gujarat High Court attempted to clarify that the order of adjournment was granted in order 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.
Justice Nagarathna was forthright in conveying her disappointment, remarking -
"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."
Further, Justice Ujjal Bhuyan also expresses his displeasure and said -
Judges do not have to justify their orders by passing a subsequent order.
"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?"
During the hearing today, Solicitor General of India Tushar Mehta was also present and requested the bench to abstain from making any comments about the High Court judge, with the suggestion that relief might be granted to the petitioner.
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."
When the Solicitor-General suggested that the order seemed to be clarifying the situation, Justice Nagarathna emphasized that there was no necessity for such an order to be issued.
"Please ignore what happened. Kindly do not [make adverse comments] because it really discourages high court judges. These have a demoralising effect. He is otherwise a very good judge."
To this repy, Justice Nagarathna said -
"We are not on any particular judge. We are only concerned with the manner in which the matter was dealt with."
The Supreme Court held that the High Court's order to reject the plea by the rape survivor for a medical termination of pregnancy was ex facie contradictory.
The State shall then take steps to ensure that the child is adopted in accordance with law, the Court ordered.
"We restrain ourselves from saying anything on the High Court order dated August 19 (Saturday)," the Court added.
Further, the Supreme Court directed that the State should take necessary steps to preserve tissues of the foetus if it is possible so that it may be handed over to the investigating agency for DNA examination in the rape case filed by the woman in the matter.
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