Tuesday, July 21, 2009

Suchitra Srivastava v. Chandigarh Admn

It was a dramatic hearing characterised by unusual human interest on both sides. The SLP against Chandigarh Admn v. Nemo was heard by the Supreme Court within four days of the High Court verdict as a special case, in order to render justice to a mentally retarded and abandoned girl, an inmate of Nariniketan, Chandigarh, who was expected to terminate her 19 week-pregnancy following the HC verdict. I need not deal with the facts of the case, as one can know the facts from the HC judgment linked to in my last post. Today, after two hours of arguments, the Supreme Court stayed the HC judgment, and indicated that it would give the reasons later.

The petitioner was ably represented by Tanu Bedi, who continued her arguments which she began yesterday. The Chandigarh Admn was represented by Anupam Gupta. Tanu Bedi began her arguments today by referring to the mandate of Article 39, but the Bench stopped her from going ahead saying that it was all clear and wanted to know who would look after the child when born, as it was convinced that the mother could not rear the child after birth.

The National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation & Multiple Disabilities, established in 1999 through an Act of Parliament, came forward to look after the child, if born with any disability. The Disability Rights Group also came forward to look after the child after birth.

Anupam Gupta said the HC judgment was the most practical way out of this dilemma and suggested that if the pregnancy continued, according to medical reports, it would further affect her mental health. The Bench comprising the CJI, Justice Sathasivam, and Justice B.S.Chauhan, however, made up its mind during the hearing, to stay the HC judgment for valid reasons. First, The CJI believed that if there were risks in continuing her pregnancy, nature would correct the risks. Second, if continuation of pregnancy could affect mental and physical health of the mother, doctors would be able to treat her, if there are fresh complications. Third, it appeared to the CJI that the Chandigarh Admn was anxious to terminate only because of the legal stipulation that it could be done only within 20 weeks of pregnancy. There have been no complications so far, and it is unreasonable to be pessimistic about the possibility of her safe delivery.

The CJI was of the view that pregnancy complications could happen to any normal woman, and that cannot be a ground for terminating in the case of a mentally retarded woman. The CJI said termination could aggravate her trauma, as she is mentally looking forward to seeing her child, though she is incapable of rearing the child herself. To a question whether the U.T.Admn will take care of the child, Anupam Gupta appeared pessimistic about finding the right persons for the task. He also said none of the institutions or trusts had offered to help during the HC's hearing. To this, the Bench said since the SC is hearing the SLP, some institutions have come forward, and it is likely that some sincere parents too may come forward to take care or adopt the child. Anupam Gupta began his arguments quoting Oliver Wendell Holmes, but it failed to convince the Bench.

Colin Gonsalves, who appeared for a social worker pleading for abortion, suggested there are increased chances of abortion, if the pregnancy continued. The Bench wanted to know from the psychiatrist and the gynecologist who knew the patient, and who were present during the hearing whether continuation of pregnancy would affect the mother's health. When they answered that she could safely deliver the child, and that she was physically fit for delivery, the Bench concluded that HC order had to be stayed. The Bench was not persuaded by the suggestion that she would not be able to cope with pregnancy.

It will be interesting to read the reasoned order in due course, and also follow the health of the mother and the child, to know who is vindicated in this case.

UPDATE: Ms.Tanu Bedi was kind enough to clarify some issues in this case. As she rightly points out, the MTP Act, as amended in 2002, defines in S.2(b) “mentally ill person” as a person who is in need of treatment by reason of any mental disorder other than mental retardation;’.

Section 4(b) makes it clear that if the woman is not a mentally ill person, then her pregnancy cannot be terminated except with her consent. As Tanu Bedi pointed out, the woman in question is mentally retarded and not mentally ill.
Now, why did the Act exempt mentally retarded woman from mental illness? Because, the Act assumed that mentally retarded persons are slow in learning, but capable of deciding themselves.

Even as this distinction is compelling, Chandigarh Admn's counsel, Anupam Gupta, points out to me that it is important to read the HC's first judgment wherein the HC extensively dealt with this issue, and agreed with him that it is not correct to read the MTP literally, as she is not in a position to give her consent as per the Act. I invite the readers to reflect on this complicated case, and let me know if they have any questions further to ask the counsel.
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