Saturday, July 18, 2009

Chandigarh Admn v. Nemo: Should a mentally retarted woman be denied the right to keep her pregnancy?

This case was perhaps the first relevant opportunity to apply and test the principles of Naz Foundation for other minorities. But the Punjab and Haryana High Court's judgment is a huge disappointment. You can access the judgment on the Punjab and Haryana High court website . It was delivered by Justice Suryakant on his and Justice Augustine George Masih's behalf on July 17. [CWP No.8760/2009]. A PDF version of the judgment is also available at this site.

The HC declined to accept the plea of the pregnant woman inmate of Nari Niketan, who is mentally retarded, not to abort her pregnancy on the following grounds, which to me, appear bizarre:

A. The women who wish to keep a pregnancy under the MTP Act must know how pregnancies are caused and how a child is born etc. (Paragraphs 18 and 19). My question: Surely, such a ground may be invoked against those ignorant pregnant women, who are not mentally retarded?

B. Paragraphs 20 and 21: Social and financial conditions of the pregnant woman have a bearing on whether she could be allowed to continue the unwanted pregnancy. Will the Court apply the same criteria for non-mentally retarded women?

C.Paragraph 22: Social and family support is crucial for a pregnant woman. The Court's desperate search for an institution which will provide such a support proved futile. Q: Is it an indication of the Court's helplessness or the misfortune of the pregnant woman? I am sure if there had been enough publicity, many institutions or families would have come forward to adopt the child once it is born. After all, the woman has been declared to be physically healthy to bear and raise the child.

D. Paragraph 24: I am unable to find any correlation between the mental age of the mother and the likely inadequacy of the learning process of the child. The Court does not rely on any medical evidence for this assertion. Please read further the same paragraph: If a child does not have a mother or father, does she have no right to be born?

E.Paragraph 25: If there is no consensus or unanimity of the parenting abilities of the mentally retarded parents, why should the Court assume that the victim's abilities will be limited?

F. If Paragraph 28 is correct (medical evidence points to greater probability of mental retardation amongst children of mentally retarded parents), why not advice the Parliament to amend the MTP Act which gives a choice to a mentally retarded pregnant woman to keep her pregnancy, if the guardian gives consent? Did the Court, which acted as a guardian in this case, seek to legislate?

G.Paragraph 29: Did the Court let its prejudices, marked by its pessimistic and defeatist outlook, influence the social acceptability of her rights as a parent?

In a recent case, the Bombay High Court has delivered a landmark decision in favour of a disabled recruit, who faced discrimination at the hands of his employer before joining. [Ranjit Kumar Rajak v. State Bank of India]Readers may well compare this with the Chandigarh Admn. case.

Dilip writes: I agree. The decision has not only a eugenic feel to it but the court seems to have projected its own strong views on the subject onto the victim. See para 30 where the court rejects the contradictory opinion of the expert committee: 'We firmly hold that notwithstanding the ambiguous responses given by the victim to some members of the Expert Body, who have erroneously though bona-fidely believed as if she is keen...'

It reminds me of Oliver Wendell Holmes' judgment in Buck v. Bell where he said:"It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind."
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