FEATURE: India; Bombay High Court Judgement, 19 September 2016
24 October 2016
Public litigation judgement supports right to abortion of women prisoners and much more
On 19 September 2016, in a case designated as public interest litigation, Justices VK Tahilramani and Mridula Bhatkar of the Bombay High Court heard the following case and made the following rulings (CIVIL SMPIL 116.doc).
The background is as follows: a judge from the City Civil & Sessions Court was visiting the District Women's Prison. A young woman (Ms S), who was an under-trial prisoner, handed her a requisition for obtaining a termination of pregnancy. In the requisition, she says that she already has a baby who is five months old. The baby was suffering from convulsion / epilepsy, hernia, loose motion as well as fever. Ms S's health was also not good and she was suffering from repeated bleeding. She was four months pregnant. She said it would be very difficult for her to look after a second baby as well as the five-month-old.
The judge made enquiries within the prison and learned that the prison medical officer supported the request for an abortion, as did the Superintendent of the prison. However, a request for permission for Ms S to have the abortion had had to be sent to a Committee based at the Sir J.J. Group of Hospitals, Mumbai. The request had been sent on 21 March 2016, but on 26 April 2016, when the judge visited the prison, no reply had been received. The judge therefore sent an application for information and urgent action to the High Court that same day, to the prison authorities and the dean of the J.J. Hospital.
The Registry of the Court took immediate steps and requested permission to forward the various documents and inform the involved parties to take "immediate needful action as permissible under law". The judge herself was asked to monitor the situation to ensure all the necessary steps were taken.
On 30 April Ms S was taken to J.J. Hospital, was brought before the concerned unit on 3 May and her pregnancy was terminated that same day. The High Court then scheduled a hearing in which the issues were examined on a public interest basis (Suo Motu PIL), as it was learned that a number of women prisoners had been faced with a similar situation. An advocate was appointed by the court to act as an impartial advisor (amicus curaie). The advocate asked the Medical Officer at the District Women's Prison to provide an affidavit on how women prisoners who are pregnant should be treated. The rules were provided, which stated that when a woman enters the prison, she will be examined and asked about her last menstrual period and given a pregnancy test. If she is pregnant, she is supposed to be taken for "further investigation, treatment and registration of pregnancy in Government Hospital at the earliest".
On 29 August, the Advocate Ms S brought to the High Court's notice that an under-trial prisoner who was lodged at Thane Central Prison had been arrested on 25 June and said she wanted to terminate her pregnancy, but no steps were being taken in this regard. The Superintendent of this prison was ordered to take a statement from the prisoner and produce it in the High Court the next day. This was done and in addition, a report of a medical examination and an ultrasound were submitted which showed the prisoner was 15 weeks pregnant as of 30 August. The prison's medical officer arranged for an abortion, the woman was admitted on 3 September and had an abortion on 4 September.
The Court report then spends many pages on the content of the Indian law on abortion and the grounds on which abortion is permitted. On page 13, the report then states: "It appears that earlier, there was some misconception that for obtaining permission for medical termination of pregnancy of a prisoner, the proposal has to be sent to a Committee. Referring the case to a Committee would entail…delay in the termination of pregnancy. This delay… could have some serious or unnecessary complications…We find that it is not necessary to refer the case of a pregnant prisoner to a Committee…". This is because the Court found that the role of the Committee involved was only to approve the place where a pregnancy "can be terminated".
Several further pages follow in which the legality of abortion as regards pregnancies over 12 weeks is discussed. The outcome of the Court's interpretation is that a woman's mental health can deteriorate if a pregnancy is forced or unwanted. The judgment states:
"irrespective of her marital status can be pregnant either by choice or it can be an unwanted pregnancy. To be pregnant is a natural phenomenon for which woman and man both are responsible. Wanted pregnancy is shared equally, however, when it is an accident or unwanted, then the man may not be there to share the burden but it may only be the woman on whom the burden falls. Under such circumstances, a question arises why only a woman should suffer. There are social, financial and other aspects immediately attached to the pregnancy of the woman and if pregnancy is unwanted, pregnancy is unwanted, it can have serious repercussions. It undoubtedly affects her mental health…
A woman's decision to terminate a pregnancy is not a frivolous one. Abortion is often the only way out of a very difficult situation for a woman. An abortion is a carefully considered decision taken by a woman who fears that the welfare of the child she already has, and of other members of the household that she is obliged to care for with limited financial and other resources, may be compromised by the birth of another child. These are decisions taken by responsible women who have few other options. They are women who would ideally have preferred to prevent an unwanted pregnancy, but were unable to do so. If a woman does not want to continue with the pregnancy, then forcing her to do so represents a violation of the woman's bodily integrity and aggravates her mental trauma, which would be deleterious to her mental health… The pregnancy takes place within the body of a woman and has profound effects on her health, mental well-being and life. Thus, how she wants to deal with this pregnancy must be a decision she and she alone can make. The right to control their own body and fertility and motherhood choices should be left to the women alone. Let us not lose sight of the basic right of women: the right to autonomy and to decide what to do with their own bodies, including whether or not to get pregnant and stay pregnant."
The Court discovered that the rules pertaining to pregnancy in women prisoners made no provision for termination of pregnancy. The Court ruled that "a woman prisoner if found pregnant should be informed by the Medical Officer attached to the prison that she can get the pregnancy terminated" if it falls under the relevant section of the abortion law, with the onus on the Medical Officer to ensure she has a termination "on an urgent basis" if she requests one. We, with all responsibility state that Section 3 of the Medical Termination of Pregnancy Act bestows a very precious right to a pregnant woman to say no to motherhood…"
The Court then refers to a Supreme Court decision of 2009 "where it is observed that there is no doubt that a woman's right to make reproductive choices is also a dimension of 'personal liberty' as understood under Article 21 of the Constitution of India" ((2009) 9 SCC 1).
Two bureaucratic reasons why abortions might be delayed were the delays in pregnant women prisoners examinations in the hospital concerned being completed without delays, and not having enough squads to take them to a hospital for this as these squads prioritise taking prisoners to court.
The bench also passed certain directions .The Court then gave directions on how to proceed in the future, in order to make it easier for women prisoners to access health facilities, including the termination of pregnancy. These included carrying out a pregnancy test within five days of a woman being placed in prison, to informing a woman with a positive test that she may ask for a termination if she wishes, and then that it should be carried out without delay.
Responses in India
On 20 September, the headline in the Economic Times regarding the judgement was as follows: "Women entitled to end pregnancy regardless of reason: High Court". The articles notes that the judges said: "…the benefits of the Act must be extended to not just married women but also to those women who "stay with their partners as married couples in live-in relationships".
Also on 20 September, the Times of India article opened: "Mumbai: A woman's decision to terminate a pregnancy is not frivolous. Abortion is often the only way out of a very difficult situation for a woman,'' the Bombay high court said as it directed jail authorities not to wait for court orders but to send women prison inmates to the nearest state hospital if they seek to terminate a pregnancy within the deadline set by law. The court said the law "bestows a very precious right to a pregnant woman to say no to motherhood. The HC judgement made available on Tuesday is significant as it preserves women's rights to dignity, privacy and bodily integrity."
In a second article on the judgement on 22 September 2016, the Times of India stressed that: "The Bombay High Court has extended to live-in relationships a pro-choice right which only married women have enjoyed so far in law."
Women's health and rights activists from CommonHealth, National Alliance for Maternal Health and Human Rights, Centre for Health and Social Justice, CREA, CEHAT and SAMA Resource Group for Women and Health, all members of the Campaign, had written a commentary in The Hindu on 11 August 2016 in response to an article calling abortion "a tricky debate", by a former High Court judge, published on 3 August 2016. We reported this exchange of views in the Campaign newsletter of 26 August 2016.
On 22 September, these Campaign members wrote to say that: "Two whole paragraphs [in the Bombay High Court's judgement] are copied verbatim from our article in The Hindu! We are of course thrilled!"
Their email continued: "The judgement is landmark because it proposes an expanded interpretation of the provision in the MTP legislation that a pregnancy may be terminated if it is injurious to the physical and mental health of the woman. Thus far, in jury to 'mental health' was presumed if pregnancy was the result of rape, or of contraceptive failure in married couples. The judgement says that contraceptive failure in all couples should be a legitimate reason for MTP and also recommends that if in any circumstance a woman considers a pregnancy to be unwanted, then denying her MTP may be injurious to her mental health… It is quite remarkable that such a judgement has come out at the present time!