Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.10463 OF 2017
Ms. Z … Appellant(s)
Versus
The State of Bihar and Others …Respondent(s)
JUDGMENT
Dipak Misra, J.
An interlocutory application being I.A. No. 64980 of
2017 has been filed seeking certain directions. Having
heard learned counsel for the parties, it is directed that
name of the appellant in the cause title be substituted
with Ms. Z so that her identity is not revealed; the
Registry of the Court shall substitute the name of the
appellant with Ms. Z in all records, including on the
official website of this Court, and the Registry of the High
Signature Not Verified
Court of Patna shall substitute the name of the appellant
Digitally signed by
GULSHAN KUMAR
ARORA
Date: 2017.08.17
15:39:40 IST
Reason:
with Ms. Z in all records, including the official
2
website of the High Court. Leave is granted to the
appellant to seek substitution of her name with Ms. Z on
all search engines such as google.com, legal websites
such as indiakanoon.org as well as legal journals.
Interlocutory application is accordingly allowed.
2. The factual score that has been depicted in the instant
appeal is reflective of a retardant attitude and laxness to
the application of the provisions of law at the appropriate
time by the authorities that can cause a disastrous affect
on the mind of a hapless victim. And the victim here is a
destitute woman, who was brought to a shelter home
from the footpath, as she was not wanted by her
husband and her family, living in abject poverty and
being scared of social stigma could not afford her a home.
Sans a sense of belonging, she was brought to ‘Shanti
Kutir’, a shelter home, run by an organization named
Youth Mobilization for National Advancement (YMNA)
under the Mukhyamantri Bhikshavriti Nivaran Yojna a
scheme floated by the Government of Bihar for destitute
women. The woman, a destitute, was found to be
pregnant by the functionaries of the home and further
3
being aware of the fact that she had been condemned to
that condition because of rape committed on her, the
competent authority of the home took her to the hospital
for termination of pregnancy with her consent. Though
the steps taken by the shelter home were prompt, yet
delay was caused by the authorities of the hospital. The
delay in such a situation has the seed that can cause
depression to a woman, who is already in despair. And
this despair has the potentiality to drive one on the path
of complete distress. In such a situation, the victim in a
state of anguish may even think of surrendering to death
or live with a traumatic experience which can be
compared to have a life that has been fragmented at the
cellular level. It is because the duty cast on the
authorities under the Medical Termination of Pregnancy
Act, 1971 (for brevity, ‘the Act’) is not dutifully performed,
and the failure has ultimately given rise to a catastrophe;
a prolonged torment. That is the sad narrative of the
victim appellant.
3. The appellant, a thirty-five year old woman, was
living on the footpath in Phulwarisharif, Patna. On
4
25th January, 2017, she was brought to Shanti Kutir. The
medical test done by Shanti Kutir showed that she was
pregnant. On 2nd February, 2017, she was taken to Patna
Medical College Hospital, Patna (PMCH), for medical
examination. On 8th February, 2017, an ultrasound test
was done at PMCH, and it was found that she was 13
weeks and 6 days pregnant. On 4th March, 2017, she
expressed her desire to terminate the pregnancy and,
accordingly, she was taken to PMCH for further medical
examination. At that juncture, the appellant revealed
that she had been raped and, therefore, the pregnancy
should be terminated. On 14 th March, 2017, she was
taken to PMCH for termination and her father and
brother were called and made to sign a consent form,
which they duly signed. However, the hospital authorities
did not proceed with the termination of the pregnancy. It
is worthy to mention here that on 18 th March, 2017, an
F.I.R. under Section 376 of the Indian Penal Code (IPC)
was registered with Mahila Police Station, Patna as Case
No.13 of 2017. The Home Superintendent, Shanti Kutir
wrote to the Superintendent of Patna Medical College and
5
Hospital, Patna, stating, inter alia, that the pregnancy is
more than 17 weeks and a divorce petition had been filed
by the husband, and the father and the brother of the
appellant expressed their inability to take her with them
because of social and financial constraints. On 3 rd April,
2017, she was again taken to PMCH, but the termination
was not carried out and, by that time, her pregnancy was
20 weeks old. As the factual narration would reveal, the
appellant was found to be HIV+ve.
4. As the pregnancy was not carried out, the appellant
approached the High Court in C.W.J.C. No. 5286 of 2017
with the prayer to ascertain the physical condition
including the stage of pregnancy and to direct for
termination of pregnancy as she had been sexually
assaulted and further she was HIV+ve. The High Court,
on 10th April, 2017, permitted the counsel for the victim
to implead the husband and her father and the Director
of Indira Gandhi Institute of Medical Sciences, Patna
(IGIMS). Thereafter, the learned single Judge directed for
constitution of a Medical Board at IGIMS, Patna, to
assess the physical and mental condition of the writ
6
petitioner therein and the fetus. On that day, the High
Court also directed the Home Superintendent, Shanti
Kutir, a Women Rehabilitation Centre, to file a counter
affidavit. Similar direction was issued to the State of
Bihar and Superintendent of PMCH. A further direction
was given by the High Court to the Senior
Superintendent of Police, Patna, to submit an interim
report with regard to the progress of investigation in
Mahila P.S. Case No.13 of 2017.
5. It is apt to note here that the Director, IGIMS, Patna
was directed to constitute a Multi Disciplinary Medical
Board consisting of Heads of Department of Gynecology,
Neurology and Forensic Medicine. Liberty was granted to
the Director, IGIMS to nominate one or more doctors as
members of the Multi Disciplinary Medical Board to
examine the victim with regard to physical and mental
state and the condition of the fetus. The writ petitioner
was directed to make herself present before the Director,
IGIMS, on 11th April, 2017 at 10.30 a.m. The IGIMS
examined the victim and submitted a report in a sealed
cover.
7
6. As the factual matrix would further uncurtain, on
18th April, 2017, the High Court took note of the fact that
the name of the appellant’s husband had been wrongly
mentioned and a direction was issued to make dasti
service on the husband and the father through the
Officer In-charge of the local police station and the
matter was fixed for 20th April, 2017. On 20th April,
2017, the matter could not be taken up and stood
adjourned to 21st April, 2017. On the adjourned date,
the father of the appellant prayed for time to file counter
affidavit. The High Court expressed its displeasure that
despite the specific direction, the Senior Superintendent
of Police, Patna, had not filed any counter affidavit,
although a submission was made by the learned
Additional Advocate General that he had been intimated
by the Senior Superintendent of Police that the
investigation was in progress and likely to be over within
six months. Thereafter, the High Court proceeded to
determine the issue whether the victim, who is HIV+ve
and is carrying a pregnancy of 24 weeks could be allowed
to have medical termination of pregnancy under the Act.
8
The stand of the Government before the High Court was
that the victim was being provided with all facilities to
survive in rehabilitation centre and the pregnancy could
not be terminated because the identity of the father of
the victim was not established and he had refused to
swear an affidavit in this regard and subsequently
escaped from the scene. The stand of the father of the
victim before the High Court was that he did not have
any objection for getting the pregnancy terminated. The
husband, the respondent No. 8 before the High Court,
admitted that he had entered into wedlock with the
victim and in the said wedlock two children were born,
but the victim had deserted him in March, 2007, and the
said circumstances led him to file Matrimonial Suit No.
984 of 2015 before the Principal Judge, Family Court,
Patna, seeking dissolution of marriage.
7. The High Court perused the report submitted by
IGIMS, which suggested that the pregnancy was 20 to 24
weeks old and the termination of pregnancy would
require major surgical procedure along with the
subsequent consequences such as bleeding, sepsis and
9
anesthesia hazards. The report that was filed by IGIMS,
which has been referred to by the High Court, needs to
be reproduced:
Issues Opinion
1. Examination report of the Physical Examination: Pulse –
patient (petitioner) with regard 100/min regular, BP-114/80
to her physical and mental mmHg, Pallor-Mild, lcerus-NIL,
stage (Physical Medical edema-Nil, Cyanosis
examination of all system will clubbing-Nil, JVP – normal,
be desirable: Chest – B/L clear no added
Respiratory, CVS, Neurology sound; CVS-S1 S2 – Normal,
etc. no added sound; P/A exam-
fundal height corresponds to
22-24 wk pregnancy; CNS –
Higher mental function intact,
no focal neurological deficit.
Mentally alert, well oriented
with time, place person
(Annexure I)
2. Stage of Pregnancy. 2nd trimester of approximately
23 wks (as per 1st USG report of
whole abdomen on 08.02.2017
of PMCH. And IGIMS, USG on
dated 11.04.2017 shows 21
wks fetus…..(Annexure-II)
According to recommendations
1st i.e., earliest USG is to be
used for Gestational age
calculation.
3. Overall condition of foetus Normal single alive
intra-uterine foetus (As per
Physical examination and USG
report)
4. How far the termination of Termination of Pregnancy at
pregnancy will be detrimental this stage sometimes may need
to the petitioner. major surgical procedure along
with the subsequent
consequences such as
Bleeding, Sepsis and
Anesthesia hazards.
5.How far it will be The patient can continue
detrimental, if the petitioner is pregnancy according to NACO
allowed to complete full term guidelines. Still there is
10
of pregnancy. likelihood that fetus may be
HIV+ve. But definitive
diagnosis can only be given
when the child is 18 months
old.
6 How far it will be As per the clinical assessment
detrimental to the petitioner documentary evidence, the
and foetus, particularly in view patient is diagnosed to have
of the fact that she is mentally Psychiatry illness, provisionally
abraised and HIV+VE. Schizophrenia with Mild Mental
Retardation. She is currently
on medications and
behaviourally stable and will
require long term psychiatry
treatment.
7. Investigation reports Reports which are made
available before the Board
Members are….. Annexure-III.
Some investigation reports
which are not available at
IGIMS like CD4 +T Lymphocyte
count, Serum HIV RNA level
(Viral load) and Triple Marker
Maternal Blood test advised by
concerned members are still
awaited, after which
progression of HIV and through
marker congenital abnormality
of foetus can be assessed.
8. The learned Single Judge, after referring to the
provisions of the Act, observed thus:
“In the present case, the medical report does
not suggest that the foetus is suffering from
any abnormality. It further does not suggest
that the foetus has already been infected with
HIV+ve. It only predicts that any definite
opinion can be given only when the child
attains the age of 18 months. The Medical
report further does not suggest that if the
victim is allowed to carry the pregnancy to its
11full course, then she will suffer any risk of life
or grave injury to her physical or mental
health. Explanation 1 of Sub-Section 2 of
Section 3, provides that such pregnancy which
is alleged to have been caused by rape shall be
presumed to constitute grave injury to the
mental health of the pregnant woman. In the
present case, the victim has alleged that she
had been ravished, but her conduct of not
disclosing the incident of rape for more than
13 weeks and deciding not to get the
pregnancy terminated for more than 20 weeks,
as the writ application has been filed after 20
weeks of pregnancy i.e. on 07.04.2017, prima
facie, does not suggest that such alleged
conceivement has really caused grave injury to
the mental health of the victim. Moreover, the
termination, as contemplated under Section 3
of the Act, 1971, is only permissible up to 20
weeks of pregnancy. Definitely the effort for
termination was made on behalf of the victim
in the 17th week of pregnancy, but the present
writ application has been filed before this
Court after 20 weeks of her pregnancy.”
9. After so stating, the High Court adverted to Sections
3 to 5 of the Act and opined that the provisions are not
applicable to the writ petitioner. The learned Single
Judge also referred to Section 10 of the Human
Immunodeficiency Virus and AIDS (Prevention and
Control) Act, 2017 and distinguished the decisions
rendered in Meera Santosh Pal v. Union of India 1,
X v. Union of India and others 2 and X v. Union of
1 AIR 2017 SC 461
2 AIR 2017 SC 1055
12
India and others3. He placed reliance on Sheetal
Shankar Salvi and another v. Union of India4,
wherein this Court has declined termination of 20 weeks
of pregnancy. The High Court, thereafter, adverted to the
statement of law in Suchita Srivastava and another v.
Chandigarh Administration5 and reproduced certain
paragraphs and took note of the concept that in the case
of a pregnant woman and ‘compelling State interest’ and
further adverted to the doctrine of ‘parens patriae’ where
in certain situations the State must make decisions in
order to protect the interest of those persons who are
unable to take care of themselves. Thereafter, the learned
single Judge adverted to the two standards, namely, ‘best
interests’ test and ‘substituted judgment’ test as laid
down in Suchita Srivastava (supra). The High Court
also dwelled upon the role of the court that it must
undertake a careful inquiry of the medical opinion on the
feasibility of the pregnancy as well as social
circumstances faced by the victim.
3 AIR 2016 SC 3525
4 2017(5) SCALE 428
5 (2009) 9 SCC 1
13
10. After so stating, the learned Single Judge delved
into the factual score projected in the writ petition and
opined thus:
“In the present case also, in the ‘best interest’
of the victim and the foetus, this Court finds
no reason to exercise the jurisdiction under
Article 226 of the Constitution of India for
directing the pregnancy to be terminated in its
23-24 weeks, particularly such termination of
pregnancy, as per the Medical Board report
would be hazardous to the life of the victim.
However, keeping in view the fact that the
victim was leading a life of destitute and she
has been almost deserted by her husband, her
father, her brother and her sister, as none of
them in their counter affidavit have stated that
they are ready to take her to their house, this
Court feels that she will be safe if she is
allowed to remain in rehabilitation centre,
Shanti Kutir so long she desires.
Mr. Kaushal Kumar Jha, learned AAG-8
submits that the rehabilitation center is run
by the Government and the Government is
ready to provide all medical facilities, as well
as amenities of day to day life to the victim.
In the circumstances, it is expected from
the Superintendent, PMCH to get the victim
medically examined every month or so and
provide all medicines or other medical facilities
required for carrying the pregnancy to its full
term and bringing up the child after its birth,
till the child attains the age of five years. The
Superintendent, PMCH would ensure to
provide the victim with necessary medical
cover in light of the direction made above.
14
This Court is hopeful that the NGO will
take care of the victim and provide all the
facilities for the post-natal care.
In the circumstances, in the interest of
justice and in the interest of victim and
foetus/prospective child, this Court is not
inclined to permit the medical terminaton of
pregnancy of the victim.”
11. After so holding, the learned Single Judge issued
certain directions, which are to the following effect:
(i) Respondent No.4 will get the bank
account of the victim opened within a period of
one week, if she does not have one.
(ii) Respondent Nos.7 and 8, the father and
the husband of the victim will deposit Rs.1,000
and Rs.1,500/-, respectively, per month in the
account of the victim from May, 2017.
(iii) If respondent Nos.7 and 8 make default
in payment on three consecutive occasions, of
the installment of the aforesaid amount, then
any of the concerned parties would be at
liberty to file an application before this Court
and respondent Nos.7 and 8 will be
answerable to this Court, in this regard.
(iv) Respondent Nos.7 and 8 will provide their
mobile number to the respondent No.4 and
shall visit the victim every month.
(v) Respondent No.4 shall allow the relatives
and husband of the victim to meet her.
(vi) One copy of the report of the Medical
Board will be kept with the records of the
present case and one copy of the conclusive
medical report will be transmitted to
15respondent No.4 by the Director of IGIMS,
Patna.
(vii) The Director, IGIMS, Patna will transmit
the awaited medical report of the victim, as
mentioned in Clause-7 of the report of the
Medical Board, to respondent No.4.”
12. The High Court decided the matter on
26th April, 2017. When the said order was challenged,
the present appeal was taken up on 3 rd May, 2017. The
learned counsel for the appellant referred to the facts as
asserted in the special leave petition which is evincible
from the order of the High Court. Though the Union of
India is not a party, Mr. P.S. Narasimha and Mr. Tushar
Mehta, learned Additional Solicitors General were asked
as to whether arrangements could be made for the
appellant to come to Delhi to be examined by a Medical
Board at All India Institute of Medical Sciences (AIIMS),
New Delhi. Learned counsel for the appellant, after
obtaining instructions, stated that she is inclined to be
examined by the Medical Board at AIIMS. Taking note of
the same, the Court directed as follows:
“Mr. P.S. Narasimha and Mr. Tushar Mehta
have submitted that a member from the Non
Governmental Organization, namely,
16Koshish-TISS, the respondent No.5 hereing,
should accompany the petitioner to Delhi. As
far as the travel is concerned, Mr. Narasimha
and Mr. Mehta spoke in unequivocal voice that
the arrangements shall be made for the
petitioner and the accompanying member so
that they can come to Delhi where further
arrangements shall be made for their stay and
the petitioner can be examined by the Medical
Board at AIIMS latest by 6th May, 2017.
The report of the Medical Board shall be
produced before this Court and we would also
request Mr. Narasimha and Mr. Mehta to
assist the Court on the issue and also to have
some discussion with the doctors, for we are
concerned with saving a life of a destitute
woman. As we are inclined to think that a
woman, who has already become a destitute
being sexually assaulted and suffering from a
serious medical ailment, not to go through
further sufferings. The quientessential purpose
of life, be it a man or a woman, is the dignity of
life and all efforts are to be made to sustain it.”
13. In pursuance of the order passed by this Court, the
Medical Board at AIIMS examined the appellant. The
opinion of the Medical Board was that the procedure
involved in termination of the pregnancy is risky to the
life of the appellant and the fetus in the womb. It has
suggested that she should be advised to continue HAART
therapy and routine antenatal care to reduce the risk of
HIV transmission to the fetus. In view of the said report,
the Court on 9th May, 2017, directed as follows:
17
“In view of the aforesaid opinion, it is the
accepted position at the Bar that there cannot
be termination of pregnancy. Learned counsel
for the petitioner would submit that the
petitioner along with the companion be sent
back to Patna and for the said purpose
appropriate arrangements be made by the
Union of India to which Mr. Tushar Mehta,
learned Additional Solicitor General concedes.
We appreciate the stand taken by the Union of
India in this regard.
Learned counsel for the petitioner
submitted that the doctors at AIIMS may give
the appropriate treatment graph for the
petitioner so that she can survive the health
hazard that she is in. Mr. Tushar Mehta,
learned Additional Solicitor General submitted
that she will be given the treatment graph by
10.05.2017.
The controversy does not end here.
Learned counsel for the petitioner would
submit that because of the delay caused, she
is compelled to undergo the existing miserable
situation and, therefore, she is entitled to get
compensation and that apart, she is also
entitled to get compensation under the Victim
Compensation Scheme as framed under
Section 357-A of the Code of Criminal
Procedure by the State of Bihar.
Apart from the above submission, we are
obligated to direct the State of Bihar to provide
all the medical facilities to the petitioner as per
the treatment graph given by the doctors who
are going to examine the petitioner at AIIMS
through the Indira Gandhi Institute of Medical
Sciences at Patna. The Indira Gandhi Institute
of Medical Sciences shall work in coordination
with AIIMS, New Delhi so that the health
18
condition of the petitioner is not further
jeopardized.
Learned counsel for the petitioner is
granted liberty to file an additional affidavit
with regard to the facet of compensation within
six weeks hence. The State of Bihar, who is
represented by Ms. Abha R. Sharma, learned
counsel shall file a reply to the special leave
petition as well as to the additional affidavit
within four weeks therefrom.
We have stated about the grant of
compensation hereinbefore. The one facet of
granting compensation pertains to negligence
and delay which come within the domain of
public law remedy. The other aspect of the
compensation comes under the scheme dated
24.3.2014 framed under Section 357-A of the
Code of Criminal Procedure. Needless to say,
the petitioner is eligible to get the
compensation under the said Scheme and,
therefore, the petitioner shall be paid a sum of
Rs.3,00,000/- (Rupees three lac only) by the
State of Bihar as she has been a victim of rape.
Needless to say, we have determined the
compensation regard being had to clause 4 of
the Scheme. The said amount shall be paid to
her within four weeks hence and compliance
report thereof shall be filed before the Registry
of this Court. As far as the other aspect of
compensation is concerned, the said aspect
shall be considered on 9.8.2017.”
14. We have narrated the facts in extenso so that the
controversy can be appreciated in proper perspective and
further the laxity on the part of the authorities and also
the approach of the High Court can be appositely
19
deliberated upon. It is submitted by Ms. Vrinda Grover,
learned counsel for the appellant that she is entitled to
get compensation from the State under the public law
remedy as the authorities under the State have not acted
with quite promptitude in terminating the pregnancy and
procrastinated the matter, as a consequence of which,
the appellant is compelled to lead a life of terrible agony
and anguish, and constant state of uncertainty. It is her
submission that as the appellant was a destitute staying
in a shelter home and neither the father or her siblings
had shown any concern because of social stigma and
their own impecuniosity and the husband had
abandoned her to her fate and preferred a divorce
petition, there was no justification to obtain the consent
of the father or the husband for termination of
pregnancy. That apart, she contends that the approach
of the High Court is wholly fallacious since it seeds more
concerned with the future of the foetus but not the life of
the victim. It is canvassed by the learned counsel that
the appellant was thirty-five years old when she had gone
to the hospital and expressed her willingness in no
20
uncertain terms to terminate her pregnancy as she had
been raped and an F.I.R. has been lodged, it was the
obligation of the competent authorities of the PMCH to
proceed with the termination and not to cause delay
which invited complications. According to her, when her
case fell squarely within the statutory framework, there
was no reason to show slackness. She also contends
that the High Court has completely failed to appreciate
the spirit of the Act and has treated it as an adversarial
litigation and passed the order which not only
unsustainable in law but also projects total lack of
sensitivity.
15. Pyramiding the submission for grant of
compensation from the State, learned counsel would
contend that when the appellant had gone to the PMCH,
it was obligatory on the part of the authorities to proceed
with the termination and that apart, the State had, in a
way, contested the writ petition. Learned counsel would
further propound that the concept of ‘compelling State
interest’ is not applicable to the case at hand but the said
concept was unnecessarily highlighted. She would
21
canvass that when the statutory function is not carried
out and the fundamental choice which is available to the
appellant in law is totally curtailed and scuttled, the
victim is entitled for compensation, for the entire action
has caused her immense mental torture. She has drawn
our attention to the affidavit filed by the
respondent-State, where the State has taken a stand that
the consent of the father and the husband was
necessary, which was not the statutory warrant in the
case of the appellant. Structuring the submission
pertaining to grant of compensation, Ms. Grover would
submit that her choice not to exercise her reproductive
rights in the factual matrix has been completely
shattered in contravention of the statutory provisions
and the pronouncements of this Court as a consequence
of which she is being compelled to carry the pregnancy to
its full term that has caused incalculable harm and
irreversible injury giving rise to emotional trauma. She
would contend, with all the humility at her command,
that when there is violation of such right because of the
negligence of the State functionaries, the victim is
22
entitled to get compensation. To buttress the said
submission, she has commended us to the authorities in
Nilabati Behera v. State of Orissa6, D.K. Basu v.
State of West Bengal7 and Chairman, Railway Board
and others v. Chandrima Das (Mrs.) and others8.
16. Ms. Abha R. Sharma, learned counsel appearing for
the State of Bihar, contends that the State has taken
care of the appellant as directed by this Court and there
has been no negligence on the part of the authorities of
the State and, therefore, the State cannot be held liable
to pay compensation. She has further urged that before
the High Court, the State has shown an affirmative
attitude and if any delay has been caused, it is because
of the expression of the view by the High Court for which
the State cannot be found fault with. In essence, her
submission is that the maxim, actus curiae neminem
gravabit, shall protect the action of the State and it
cannot be blamed for any procrastination.
17. To appreciate the rivalized submissions advanced at
the Bar, it is necessary to understand the background in
6 (1993) 2 SCC 746
7 (1997) 1 SCC 416
8 (2000) 2 SCC 465
23
which the Act was enacted by the Parliament. The
Statement of Objects and Reasons of the Act reads as
follows:
“The provisions regarding the termination of
pregnancy in the Indian Penal Code which were
enacted about a century ago were drawn up in
keeping with the then British Law on the subject.
Abortion was made a crime for which the mother
as well as the abortionist could be punished
except where it had to be induced in order to save
the life of the mother. It has been stated that
this very strict law has been observed in the
breach in a very large number of cases all over
the country. Furthermore, most of these mothers
are married women, and are under no particular
necessity to conceal their pregnancy.
2. In recent years, when health services have
expanded and hospitals are availed of to the
fullest extent by all classes of society, doctors
have often been confronted with gravely ill or
dying pregnant women whose pregnant uterus
have been tampered with a view to causing an
abortion and consequently suffered very severely.
3. There is thus avoidable wastage of the
mother’s health, strength and, sometimes, life.
The proposed measure which seeks to liberalise
certain existing provisions relating to termination
of pregnancy has been conceived (1) as a health
measure–when there is danger to life or risk to
physical or mental health of the woman; (2) on
humanitarian grounds–such as when pregnancy
arises from a sex crime like rape or intercourse
with a lunatic woman, etc.; and (3) eugenic
grounds–where there is substantial risk that the
child, if born, would suffer from deformities and
diseases.”
24
18. The aforesaid makes it absolutely clear that the
Legislature intended to liberalize the existing provisions
relating to termination of pregnancy keeping in view the
danger to life or risk to physical or mental health of the
woman; on humanitarian grounds, such as when
pregnancy arises from a sex crime like rape or
intercourse with a lunatic woman, and eugenic grounds
where there is substantial risk that the child, if born,
would suffer from deformities and diseases.
19. Section 2, which is the dictionary clause, defines
the term “guardian” to mean a person having the care of
the person of a minor or a mentally ill person. “Mentally
ill person” has been defined to mean a person who is in
need for treatment by reason of any mental disorder
other than mental retardation. The dictionary clause also
defines the terms ‘minor’ and ‘registered medical
practitioner’.
20. Section 3 stipulates that when pregnancy may be
terminated by the registered medical practitioners. It
reads as follows:
25
“Section 3. When pregnancies may be
terminated by registered medical
practitioners.—(1) Notwithstanding anything
contained in the Indian Penal Code (45 of 1860),
a registered medical practitioner shall not be
guilty of any offence under that Code or under
any other law for the time being in force, if any
pregnancy is terminated by him in accordance
with the provisions of this Act.
(2) Subject to the provisions of sub-section (4), a
pregnancy may be terminated by a registered
medical practitioner,—
(a) where the length of the pregnancy does not
exceed twelve weeks if such medical
practitioner is, or
(b) where the length of the pregnancy exceeds
twelve weeks but does not exceed twenty
weeks, if not less than two registered medical
practitioners are,
of opinion, formed in good faith, that,—
(i) the continuance of the pregnancy would
involve a risk to the life of the pregnant
woman or of grave injury to her physical or
mental health; or
(ii) there is a substantial risk that if the child
were born, it would suffer from such physical
or mental abnormalities as to be seriously
handicapped.
Explanation 1.—Where any pregnancy is alleged
by the pregnant woman to have been caused by
rape, the anguish caused by such pregnancy
shall be presumed to constitute a grave injury to
the mental health of the pregnant woman.
Explanation 2.—Where any pregnancy occurs as
a result of failure of any device or method used
26
by any married woman or her husband for the
purpose of limiting the number of children, the
anguish caused by such unwanted pregnancy
may be presumed to constitute a grave injury to
the mental health of the pregnant woman.
(3) In determining whether the continuance of
pregnancy would involve such risk of injury to
the health as is mentioned in sub-section (2),
account may be taken to the pregnant woman’s
actual or reasonable foreseeable environment.
(4) (a) No pregnancy of a woman, who has not
attained the age of eighteen years, or, who,
having attained the age of eighteen years, is a
mentally ill person, shall be terminated except
with the consent in writing of her guardian.
(b) Save as otherwise provided in C1ause (a), no
pregnancy shall be terminated except with the
consent of the pregnant woman.”
[Emphasis added]
21. We have underlined the relevant part of the
provision for the purpose that where length of pregnancy
exceeds 12 weeks but does not exceed 20 weeks, two
registered medical practitioners, after forming an opinion
in good faith, that the continuance of the pregnancy
would involve a risk to the life of the pregnant woman or
of grave injury to her physical or mental health and that
there is substantial risk that if the child were born, it
would suffer from physical or mental abnormalities as to
27
be seriously handicapped, may terminate the pregnancy.
Explanation 1 to sub-section (2) of Section 3 to which our
attention has been drawn postulates that where any
pregnancy is alleged by the pregnant woman to have
been caused by rape, the anguish caused by the same
has to be presumed to constitute a grave injury to the
mental health of the pregnant woman. Once such a
statutory presumption is provided, the same comes
within the compartment of grave injury to mental health.
Sub-Section (4) of Section 3 requires consent of the
guardian of a minor, or a major who is mentally ill
person. The opinion to be formed by the medical
practitioners is to be in good faith.
22. In the instant case, the gravamen of the submission
of the learned counsel for the appellant is that negligence
and delay have been caused by the authorities of the
State. Be it noted, learned counsel for the appellant has
filed a chart giving various dates to highlight the
chronology of events. On a perusal of the same, it is
demonstrable that after the appellant was brought to
Shanti Kutir, it was noticed that she was pregnant. She
28
was taken to PMCH. At that time, she was 13 weeks and
6 days pregnant. In the midst of 18 th week, she expressed
her desire to terminate her pregnancy and that was
communicated by the Shanti Kutir to the hospital and,
thereafter, she was taken to PMCH, where she made an
allegation that she had been raped and expressed her
desire to terminate her pregnancy. Though she was taken
to the hospital for termination of pregnancy, yet the
hospital authorities instead of proceeding with the
termination, called the father of the appellant to sign the
consent form. According to the learned counsel for the
appellant, while she had gone to the government hospital
and clearly stated that she had been raped and further
she was taken by the persons from the Shanti Kutir,
which is a Women Rehabilitation Centre, and further
there was no material that she was suffering from any
mental illness, it was obligatory on the part of the
hospital to terminate the pregnancy. Had that been done
at the right time, the grave mental torture that she has
been going through could have been avoided. Learned
counsel also criticized the approach of the High Court in
29
not dealing with the matter with required amount of
sensitivity and not adhering to the statutory provision
that when there is an allegation of rape, the pregnancy
can be terminated. The High Court directed for a Medical
Board to be constituted and after receipt of the report of
the Medical Board some time was consumed and,
thereafter, also the High Court required the father of the
appellant to file an affidavit giving his consent.
23. We have already anlaysed in detail the factual score
and the approach of the High Court. We do not have the
slightest hesitation in saying that the approach of the
High Court is completely erroneous. The report
submitted by the IGIMS stated that termination of
pregnancy may need major surgical procedure along with
subsequent consequences such as bleeding, sepsis and
anesthesia hazards, but there was no opinion that the
termination could not be carried out and it was risky to
the life of the appellant. There should have been a query
in this regard by the High Court which it did not do.
That apart, the report shows that the appellant, who was
a writ petitioner before the High Court, was suffering
30
from mild mental retardation and she was on
medications and her condition was stable and she would
require long term psychiatry treatment. The Medical
Board has not stated that she was suffering from any
kind of mental illness. The appellant was thirty-five year
old at that time. She was a major. She was able to allege
that she had been raped and that she wanted to
terminate her pregnancy. PMCH, as we find, is definitely
a place where pregnancy can be terminated. For the said
purpose, we may usefully reproduce Section 4 of the Act:
“Section 4.─Place where pregnancy may be
terminated.-No termination of pregnancy
shall be made in accordance with this Act at
any place other than,-
(a) a hospital established or maintained by
Government, or
(b) a place for the time being approved for
the purpose of this Act by Government or a
District Level Committee constituted by
that Government with the Chief Medical
Officer or District Health Officer as the
Chairperson of the said Committee.
Provided that the District Level Committee
shall consist of not less than three and not
more than five members including the
Chairperson, as the Government may specify
from time to time.”
31
24. The Medical Termination of Pregnancy Regulations,
2003 (for short, ‘the Regulations’) deals with various
aspects. Regulation 3 provides for form of certifying
opinion or opinions. It stipulates that where one
registered medical practitioner forms or not less than two
registered medical practitioners form such opinion as is
referred to in sub-section (2) of Section 3 or 5, he or she
shall certify such opinion in Form I. It further provides
that every registered medical practitioner who terminates
any pregnancy shall within three hours from the
termination of the pregnancy certify such termination in
Form I. Regulation 4 deals with custody of forms.
Sub-Regulation (1) of Regulation 4 provides that the
consent given by a pregnant woman for the termination
of her pregnancy, together with the certified opinion
recorded under Section 3 or Section 5, as the case may
be and the intimation of termination of pregnancy shall
be placed in an envelope which shall be sealed by the
registered medical practitioner or practitioners by whom
such termination of pregnancy was performed and until
that envelope is sent to the head of the hospital or owner
32
of the approved place or the Chief Medical Officer of the
State, it shall be kept in the safe custody of the
concerned registered medical practitioner or
practitioners, as the case may be. Be it noted that
Section 5 is an exception to Sections 3 and 4, for it
provides that Sections 3 and 4 would not apply to certain
circumstances as enumerated in Section 5. In the
present case, we are concerned with Regulation 3 only.
25. The Form No. I has been provided under
Regulation 3 and that covers sub-section (2) of Section 3
and Section 5. The relevant part of the said Form is
reproduced below:
“*I/We hereby give intimation that *I/We
terminated the pregnancy of the woman
referred to above who bears the serial No.
………….. in the Admission Register of the
hospital/approved place.
Place…… Signature of the Registered
Medical PractitionerDate….. .. Signature of the Registered
Medical PractitionerStrike out whichever is not applicable.
** of the reasons specified items (i) to (v) write
the one which is appropriate:-
33
(i) in order to save the life of the pregnant
woman,
(ii) in order to prevent grave injury to the
physical and mental health of the
pregnant woman,
(iii) in view of the substantial risk that if
the child was born it would suffer from
such physical or mental abnormalities
as to be seriously handicapped,
(iv) as the pregnancy is alleged by
pregnant woman to have been caused
by rape,
(v) as the pregnancy has occurred as
result of failure of any contraceptive
device or methods used by married
woman or her husband for the purpose
of limiting the number of childrenNote. – Account may be taken of the pregnant
woman’s actual or reasonably foreseeable
environment in determining whether the
continuance of her pregnancy would involve a
grave injury to her physical or mental health.
Place….
Date…..
Signature of the Registered
Medical Practitioner/Practitioners”
26. Thus, the opinion has to be formed by the registered
practitioners as per the Act and they are required to form
an opinion that continuance of pregnancy would involve
a grave mental or physical harm to her. We have already
34
referred to Explanation 1 which includes allegation of
rape. As is perceivable, the appellant had gone from a
women rehabilitation centre, had given consent for
termination of pregnancy and had alleged about rape
committed on her, but the termination was not carried
out. In such a circumstance, we are obliged to hold that
there has been negligence in carrying out the statutory
duty, as a result of which, the appellant has been
constrained to suffer grave mental injury.
27. In such a situation, submits Ms. Grover, the State
is bound to compensate the appellant under public law
remedy. It is her proponement that the appellant was
suffering from mental retardation, but not from mental
illness and the distinction is clear from the language of
sub-section (4) of Section 3 of the Act. That apart, her
contention is that the victim was a destitute and in such
a situation, impleadment of her husband and father for
obtaining their consent was wholly unwarranted and, in
a way, allow time to ‘rule’.
28. In Suchita Srivastava (supra), the High Court of
Punjab Haryana ruled that it was in the best interests
35
of a mentally retarded woman to undergo an abortion.
The victim had become pregnant as a result of an alleged
rape that took place when she was an inmate at a
government-run welfare institution located in
Chandigarh and after discovery of her pregnancy, the
Chandigarh Administration, approached the High Court
seeking approval for the termination of her pregnancy,
keeping in mind that in addition to being mentally
retarded she was also an orphan who did not have any
parent or guardian to look after her or her prospective
child. The High Court perused the preliminary medical
opinion and constituted an expert body and, eventually,
directed the termination of pregnancy in spite of the
expert body’s findings which show that the victim had
expressed her willingness to bear a child. In that
context, the Court adverted to the distinction between
the ‘mental illness’ and ‘mental retardation’. It also noted
that the expert body’s findings were in favour of
continuation of pregnancy and took note of the fact that
the victim had clearly given her willingness to bear a
child. In that context, the Court stated:
36
“The victim’s reproductive choice should be
respected in spite of other factors such as the
lack of understanding of the sexual act as well
as apprehensions about her capacity to carry
the pregnancy to its full term and the
assumption of maternal responsibilities
thereafter. We have adopted this position since
the applicable statute clearly contemplates
that even a woman who is found to be
“mentally retarded” should give her consent for
the termination of a pregnancy.”
And again:
“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. It is
important to recognise that reproductive
choices can be exercised to procreate as well
as to abstain from procreating. The crucial
consideration is that a woman’s right to
privacy, dignity and bodily integrity should be
respected. This means that there should be no
restriction whatsoever on the exercise of
reproductive choices such as a woman’s right
to refuse participation in sexual activity or
alternatively the insistence on use of
contraceptive methods. Furthermore, women
are also free to choose birth control methods
such as undergoing sterilisation procedures.
Taken to their logical conclusion, reproductive
rights include a woman’s entitlement to carry a
pregnancy to its full term, to give birth and to
subsequently raise children. However, in the
case of pregnant women there is also a
“compelling State interest” in protecting the life
of the prospective child. Therefore, the
termination of a pregnancy is only permitted
when the conditions specified in the applicable
statute have been fulfilled. Hence, the
provisions of the MTP Act, 1971 can also be
37
viewed as reasonable restrictions that have
been placed on the exercise of reproductive
choices.”
29. Explaining the provision of the Act, the Court
opined that ordinarily a pregnancy can be terminated
only when a medical practitioner is satisfied that a
continuance of the pregnancy would involve risk to the
life of the pregnant woman or of grave injury to her
physical or mental health or when there is a substantial
risk that if the child were born, it would suffer from such
physical or mental abnormalities as to be seriously
handicapped. While the satisfaction of one medical
practitioner is required for terminating a pregnancy
within twelve weeks of the gestation period, two medical
practitioners must be satisfied about either of these
grounds in order to terminate a pregnancy between
twelve to twenty weeks of the gestation period.
30. The Court also took note of the provision that
termination of the pregnancy has been contemplated
when the same is the result of a rape or a failure of birth
control methods, since both of these eventualities have
been equated with a grave injury to the mental health of
38
a woman. The Court emphasized that in all such
circumstances, the consent of the pregnant woman is an
essential requirement for proceeding with the termination
of pregnancy. The three-Judge Bench referred to the
Persons with Disabilities (Equal Opportunities, Protection
of Rights and Full Participation) Act, 1995 (for short,
‘1995 Act’) and opined that in the said Act also “mental
illness” has been defined as mental disorder other than
mental retardation. The Court also took note of the
definition of “mental retardation” under the 1995 Act.
The definition read as follows:
“2(r) ‘mental retardation’ means a condition of
arrested or incomplete development of mind of
a person which is specially characterised by
subnormality of intelligence.”
31. The Court also apprised itself that the same
definition of “mental retardation” has also been
incorporated under Section 2(g) of the National Trust for
Welfare of Persons with Autism, Cerebral Palsy, Mental
Retardation and Multiple Disabilities Act, 1999.
Analysing the provision of Act. The Court opined that
while a guardian can make decisions on behalf of a
“mentally ill person” as per Section 3(4)(a) of the 1971
39
Act, the same cannot be done on behalf of a person who
is in a condition of “mental retardation”. Thus, the
difference between the ‘mental illness’ and ‘mental
retardation’ as recognized in law, was emphasised.
32. The three-Judge Bench proceeded to address the
‘best interest’ of the victim and invocation of the doctrine
of parens patriae. In that context, it held:
“As evident from its literal description, the
“best interests” test requires the Court to
ascertain the course of action which would
serve the best interests of the person in
question. In the present setting this means
that the Court must undertake a careful
inquiry of the medical opinion on the feasibility
of the pregnancy as well as social
circumstances faced by the victim. It is
important to note that the Court’s decision
should be guided by the interests of the victim
alone and not those of the other stakeholders
such as guardians or the society in general. It
is evident that the woman in question will
need care and assistance which will in turn
entail some costs. However, that cannot be a
ground for denying the exercise of reproductive
rights.”
33. After so stating, the Court adverted to the facts of
the case and came to hold that though the victim had
been described as a person suffering from mild mental
retardation, that did not mean that she was entirely
incapable of making decision for herself. It discarded the
40
‘substituted judgment’ test, which requires the Court to
step into the shoes of a person who is considered to be
mentally incapable and attempt to make the decision
which the said person would have made, if she was
competent to do so. The Court observed that it is a more
complex inquiry but this test can only be applied to make
decisions on behalf of persons who are conclusively
shown to be mentally incompetent. The Court noted that
there are varying degrees of mental retardation, namely,
those described as borderline, mild, moderate, severe and
profound instances of the same. Persons suffering from
severe and profound mental retardation usually require
intensive care and supervision and a perusal of academic
materials suggests that there is a strong preference for
placing such persons in an institutionalised
environment. However, persons with borderline, mild or
moderate mental retardation are capable of living in
normal social conditions even though they may need
some supervision and assistance from time to time.
34. The Court referred to the United Nations
Declaration on the Rights of Mentally Retarded Persons,
41
1971 [GA Res 2856 (XXVI) of 20-12-1971] and relied on
principle No.7 of the same. Principle No. 7 reads as
follows:
“Whenever mentally retarded persons are
unable, because of the severity of their
handicap, to exercise all their rights in a
meaningful way or it should become necessary
to restrict or deny some or all of these rights,
the procedure used for that restriction or
denial of rights must contain proper legal
safeguards against every form of abuse. This
procedure must be based on an evaluation of
the social capability of the mentally retarded
person by qualified experts and must be
subject to periodic review and to the right of
appeal to higher authorities.”
35. Placing reliance on the same, it observed thus:
“In respecting the personal autonomy of
mentally retarded persons with regard to the
reproductive choice of continuing or
terminating a pregnancy, the MTP Act lays
down such a procedure. We must also bear in
mind that India has ratified the Convention on
the Rights of Persons with Disabilities (CRPD)
on 1-10-2007 and the contents of the same are
binding on our legal system.
x x x x
It would also be proper to emphasise that
persons who are found to be in a condition of
borderline, mild or moderate mental
retardation are capable of being good parents.
Empirical studies have conclusively disproved
the eugenics theory that mental defects are
likely to be passed on to the next generation.
The said “eugenics theory” has been used in
the past to perform forcible sterilisations and
42abortions on mentally retarded persons. [See
generally: Elizabeth C. Scott, “Sterilization of
Mentally Retarded Persons: Reproductive
Rights and Family Privacy”, Duke Law Journal
806-65 (November 1986).] We firmly believe
that such measures are anti-democratic and
violative of the guarantee of “equal protection
before the law” as laid down in Article 14 of
our Constitution.
It is also pertinent to note that a condition of
“mental retardation” or developmental delay is
gauged on the basis of parameters such as
intelligence quotient (IQ) and mental age (MA)
which mostly relate to academic abilities. It is
quite possible that a person with a low IQ or
MA may possess the social and emotional
capacities that will enable him or her to be a
good parent. Hence, it is important to evaluate
each case in a thorough manner with due
weightage being given to medical opinion for
deciding whether a mentally retarded person is
capable of performing parental
responsibilities.”
36. On the basis of the aforesaid analysis, the Court
concluded:
“In our considered opinion, the language of the
MTP Act clearly respects the personal
autonomy of mentally retarded persons who
are above the age of majority. Since none of
the other statutory conditions have been met
in this case, it is amply clear that we cannot
permit a dilution of the requirement of consent
for proceeding with a termination of
pregnancy. We have also reasoned that
proceeding with an abortion at such a late
stage (19-20 weeks of gestation period) poses
43significant risks to the physical health of the
victim.”
37. In the said case, the Court took note of the fact that
the expert body which had examined the victim indicated
that the continuation of the pregnancy did not pose any
grave risk to the physical and mental health of the victim
and that there was no indication that the prospective
child was likely to suffer from a congenital disorder.
Regard being had to the totality of the facts and
circumstances of the case, it was directed that the best
medical facilities be made available so as to ensure
proper care and supervision during the period of
pregnancy as well as for the post-natal care.
38. In a recent decision in Ms. Eera Thr. Dr. Manjula
Krippendorf v. State (Govt. of NCT of Delhi) and
another9, the distinction between the mental illness and
mental retardation, keeping in view the statutory
provisions and the concept of purposive interpretation,
has been accepted.
39. In the case at hand, the appellant is a victim of
rape. She suffers from mild mental retardation and she
9 2017 (8) SCALE 112
44
is administered psychiatry treatment, but she is in a
position to express her consent. Under the statutory
framework, she was entitled to give her consent for
termination of pregnancy. As is evident, she did not
desire to bear a child. This is a reverse situation what
has been portrayed in Suchita Srivastava (supra). The
principle set out in Suchita Srivastava (supra)
emphasizes on consent. As the facts would unfurl, the
appellant had given consent for termination and she had
categorically alleged about rape. In such a circumstance,
we perceive no fathomable reason on the part of the
PMCH not to have proceeded for termination of the
pregnancy because there was nothing on record to show
that there was any danger to the life of the victim.
40. In this context, we may refer with profit to the
recent decision rendered in X v. Union of India (supra)
wherein the Court laying stress on a woman’s right to
make reproductive choices and further taking into
consideration the report of the Medical Board directed as
follows:
“Though the current pregnancy of the
petitioner is about 24 weeks and endangers
45the life and the death of the foetus outside the
womb is inevitable, we consider it appropriate
to permit the petitioner to undergo termination
of her pregnancy under the provisions of the
Medical Termination of Pregnancy Act, 1971.
We order accordingly.”
41. In Sheetal Shankar Salvi (supra), a two-Judge
Bench declined termination of pregnancy after perusal of
the report of the Medical Board. The observations and the
conclusion of the Court are to the following effect:
“However, having regard to the fact that
there is no danger to the mother’s life and the
likelihood that ‘the baby may be born alive and
may survive for variable period of time, we do
not consider it appropriate in the interests of
justice to direct the respondents to allow
petitioner no. 1 to undergo medical
termination of her pregnancy. In fact, the
aforesaid Medical Board has itself stated that
it does not advise medical termination of
pregnancy for petitioner no. 1 on medical
grounds.
The only other ground that appears from
the observations made in the aforesaid medical
report apart from the medical grounds, is that
petitioner no. 1 is anxious about the outcome
of the pregnancy. We find that the termination
of pregnancy cannot be permitted due to this
reason.”
On a careful reading of the aforesaid decision, we do
not have slightest hesitation in our mind that the facts in
46
the said cases and the observations made therein have
no application to the facts of the instant case.
42. In Meera Santosh Pal (supra), the Court noted the
fact that the foetus is without a skull and would,
therefore, not be in a position to survive. The Court
adverted to the fact that the petitioner therein was a
woman of average intelligence and with good
comprehension and she had understood that her foetus
was abnormal and the risk of foetal mortality was high.
She had also the support of her husband in her
decision-making. The Court allowed the termination of
pregnancy despite the pregnancy having gone into 24 th
week. What weighed with the Court was danger to the life
of the woman and the certain inability of the foetus to
survive extra-uterine life. Emphasis has been laid on the
aspect that the overriding consideration is that she has a
right to take all such steps as necessary to preserve her
own life against the avoidable danger to it.
43. In the case at hand, we have noted, termination of
pregnancy could have been risky to the life of the
appellant as per the report of the Medical Board at AIIMS
47
which was constituted as per the direction of this Court
on 3rd May, 2017. This situation could have been avoided
had the decision been taken at the appropriate time by
the government hospital at Patna. For the negligence and
carelessness of the hospital, the appellant has been
constrained to suffer. The mental torture on certain
occasions has more grievous impact than the physical
torture.
44. In Mehmood Nayyar Azam v. State of
Chhattisgarh10, the Court has observed that the word
“torture” in its denotative concept includes mental and
psychological harassment. It has the potentiality to cause
distress and affects the dignity of a citizen. Under the
present Act, the appellant is covered by the definition. In
such a situation, there was no justification to push back
her rights and throw her into darkness to corrode her
self-respect and individual concern. She had decided to
exercise her statutory right, being a victim of rape, not to
bear the child and more so, when there is possibility of
the child likely to suffer from HIV+ve, the authorities of
the State should have been more equipped to assist the
10 (2012) 8 SCC 1
48
appellant instead of delaying the process. That apart, as
is seen, the State in a way contested the matter before
the High Court on the foundation of State interest. The
principle of State interest is not at all applicable to the
present case. Therefore, the concept of grant of
compensation under public law remedy emerges.
45. In Nilabati Behera (supra), Justice J.S. Verma, (as
His Lordship then was), opined thus:
“‘a claim in public law for compensation’ for
contravention of human rights and
fundamental freedoms, the protection of which
is guaranteed in the Constitution, is an
acknowledged remedy for enforcement and
protection of such rights, and such a claim
based on strict liability made by resorting to a
constitutional remedy provided for the
enforcement of a fundamental right is ‘distinct
from, and in addition to, the remedy in private
law for damages for the tort’ resulting from the
contravention of the fundamental right. The
defence of sovereign immunity being
inapplicable, and alien to the concept of
guarantee of fundamental rights, there can be
no question of such a defence being available
in the constitutional remedy. It is this principle
which justifies award of monetary
compensation for contravention of
fundamental rights guaranteed by the
Constitution, when that is the only practicable
mode of redress available for the contravention
made by the State or its servants in the
purported exercise of their powers, and
enforcement of the fundamental right is
claimed by resort to the remedy in public law
49under the Constitution by recourse to Articles
32 and 226 of the Constitution.”
46. Dr. A.S. Anand, (as His Lordship then was), in his
concurring opinion, expressed that:
“The relief of monetary compensation, as
exemplary damages, in proceedings under
Article 32 by the Supreme Court or under
Article 226 by the High Courts, for established
infringement of the indefeasible right
guaranteed under Article 21 of the
Constitution is a remedy available in public
law and is based on the strict liability for
contravention of the guaranteed basic and
indefeasible rights of the citizen. The purpose
of public law is not only to civilize public power
but also to assure the citizen that they live
under a legal system which aims to protect
their interests and preserve their rights.
Therefore, when the court moulds the relief by
granting ‘compensation’ in proceedings under
Articles 32 or 226 of the Constitution seeking
enforcement or protection of fundamental
rights, it does so under the public law by way
of penalising the wrongdoer and fixing the
liability for the public wrong on the State
which has failed in its public duty to protect
the fundamental rights of the citizen. The
payment of compensation in such cases is not
to be understood, as it is generally understood
in a civil action for damages under the private
law but in the broader sense of providing relief
by an order of making ‘monetary amends’
under the public law for the wrong done due to
breach of public duty, of not protecting the
fundamental rights of the citizen. The
compensation is in the nature of ‘exemplary
damages’ awarded against the wrongdoer for
the breach of its public law duty and is
independent of the rights available to the
50aggrieved party to claim compensation under
the private law in an action based on tort,
through a suit instituted in a court of
competent jurisdiction or/and prosecute the
offender under the penal law.”
47. In Sube Singh v. State of Haryana11, a
three-Judge Bench, after referring to earlier decisions,
held:
“It is thus now well settled that the award of
compensation against the State is an
appropriate and effective remedy for redress of
an established infringement of a fundamental
right under Article 21, by a public servant. The
quantum of compensation will, however,
depend upon the facts and circumstances of
each case. Award of such compensation (by
way of public law remedy) will not come in the
way of the aggrieved person claiming
additional compensation in a civil court, in the
enforcement of the private law remedy in tort,
nor come in the way of the criminal court
ordering compensation under Section 357 of
the Code of Criminal Procedure.”
48. In Hardeep Singh v. State of M.P.12, though the
High Court had granted compensation of Rs. 70,000/-,
this Court, while concurring with the opinion that related
to justification of compensation, enhanced the
compensation by holding thus:
“Coming, however, to the issue of
compensation, we find that in the light of the
11 (2006) 3 SCC 178
12 (2012) 1 SCC 748
51
findings arrived at by the Division Bench, the
compensation of Rs 70,000 was too small and
did not do justice to the sufferings and
humiliation undergone by the appellant. In the
facts and circumstances of the case, we feel
that a sum of Rs 2,00,000 (Rupees two lakhs)
would be an adequate compensation for the
appellant and would meet the ends of justice.
We, accordingly, direct the State of Madhya
Pradesh to pay to the appellant the sum of Rs
2,00,000 (Rupees two lakhs) as compensation.
In case the sum of Rs 70,000 as awarded by
the High Court, has already been paid to the
appellant, the State would naturally pay only
the balance amount of Rs 1,30,000 (Rupees
one lakh thirty thousand).”
49. In Chairman, Railway Board (supra), the Court
copiously adverted to the public law remedy and finding
fault with the Railways and opined that:
“Running of the Railways is a commercial
activity. Establishing the Yatri Niwas at various
railway stations to provide lodging and
boarding facilities to passengers on payment of
charges is a part of the commercial activity of
the Union of India and this activity cannot be
equated with the exercise of sovereign power.
The employees of the Union of India who are
deputed to run the Railways and to manage the
establishment, including the railway stations
and the Yatri Niwas, are essential components
of the government machinery which carries on
the commercial activity. If any of such
employees commits an act of tort, the Union
Government, of which they are the employees,
can, subject to other legal requirements being
satisfied, be held vicariously liable in damages
to the person wronged by those employees.
Kasturi Lal decision46 therefore, cannot be
52pressed into aid. Moreover, we are dealing with
this case under the public law domain and not
in a suit instituted under the private law
domain against persons who, utilising their
official position, got a room in the Yatri Niwas
booked in their own name where the act
complained of was committed.”
50. On the aforesaid basis, this Court affirmed the
judgment of the High Court and directed that the amount
of compensation should be made over to the High
Commissioner for Bangladesh in India for payment of the
same to the victim as she was entitled to it.
51. In Rini Johar and another v. State of Madhya
Pradesh and others13, the petitioners therein were
arrested in violation of the mandate of law under Section
41A of the Code of Criminal Procedure and the judgment
of this Court rendered in D.K. Basu (supra). The
petitioners in the said case were a doctor and a
practicing advocate. The arrest being illegal, the Court
opined that their dignity had been absolutely jeopardized.
Referring to the earlier decisions, the Court held as
under:
“In such a situation, we are inclined to think
that the dignity of the petitioners, a doctor and
a practising advocate has been seriously
13 (2016) 11 SCC 703
53jeopardised. Dignity, as has been held in
Charu Khurana v. Union of India, (2015) 1 SCC
192, is the quintessential quality of a
personality, for it is a highly cherished value. It
is also clear that liberty of the petitioner was
curtailed in violation of law. The freedom of an
individual has its sanctity. When the
individual liberty is curtailed in an unlawful
manner, the victim is likely to feel more
anguished, agonised, shaken, perturbed,
disillusioned and emotionally torn. It is an
assault on his/her identity. The said identity is
sacrosanct under the Constitution. Therefore,
for curtailment of liberty, requisite norms are
to be followed. Fidelity to statutory safeguards
instil faith of the collective in the system. It
does not require wisdom of a seer to visualise
that for some invisible reason, an attempt has
been made to corrode the procedural
safeguards which are meant to sustain the
sanguinity of liberty. The investigating agency,
as it seems, has put its sense of accountability
to law on the ventilator. The two ladies have
been arrested without following the procedure
and put in the compartment of a train without
being produced before the local Magistrate
from Pune to Bhopal. One need not be
Argus-eyed to perceive the same. Its visibility
is as clear as the cloudless noon day. It would
not be erroneous to say that the enthusiastic
investigating agency had totally forgotten the
golden words of Benjamin Disraeli:
“I repeat … that all power is a trust—that
we are accountable for its exercise—that,
from the people and for the people, all
springs and all must exist.”We are compelled to say so as liberty
which is basically the splendour of beauty of
life and bliss of growth, cannot be allowed to
54be frozen in such a contrived winter. That
would tantamount to comatosing of liberty
which is the strongest pillar of democracy.”
52. After so holding, the Court referred to the concept of
public law remedy and awarded Rs. 5,00,000/- (Rupees
five lakhs only) towards compensation to each of the
petitioners to be paid by the State within a stipulated
time.
53. In the instant case, it is luminescent that the
appellant has suffered grave injury to her mental health.
The said injury is in continuance. It is a sad thing that
despite the prompt attempt made by this Court to get her
examined so that she need not undergo the anguish of
bearing a child because she is a victim of rape, it could
not be so done as the medical report clearly stated that
there was risk to the life of the victim. Therefore, we are
inclined to think that the continuance of the injury
creates a dent in the mind and the appellant is compelled
to suffer the same. One may have courage or cultivate
courage to face a situation, but the shock of rape is
bound to chain and enslave her with the trauma she has
faced and cataclysm that she has to go through. Her
55
condition cannot be reversed. The situation as is
unredeemable. But a pregnant one, she has to be
compensated so that she lives her life with dignity and
the authorities of the State who were negligent would
understand that truancy has no space in a situation of
the present kind. What needed is promptitude.
54. This Court had earlier directed that she should be
paid compensation under the Victims Compensation
Scheme as framed under Section 357-A of the Code of
Criminal Procedure. She has been paid Rs. 3,00,000/-
as she has been a victim of rape. It may be clearly stated
that grant of compensation for the negligence and the
suffering for which the authorities of the State are
responsible is different as it comes within the public law
remedy and it has a different compartment. Keeping in
view the mental injury that the victim has to suffer, we
are disposed to think that the appellant should get a sum
of Rs. 10,00,000/- (Rupees ten lakhs only) as
compensation from the State and the same shall be kept
in a fixed deposit in her name so that she may enjoy the
interest. We have so directed as we want that money to
56
be properly kept and appropriately utilized. It may also
be required for child’s future. That apart, it is directed,
that the child to be born, shall be given proper treatment
and nutrition by the State and if any medical aid is
necessary, it shall also be provided. If there will be any
future grievance, liberty is granted to the appellant to
approach the High Court under Article 226 of the
Constitution of India after the birth of the child.
55. Having said so, it is necessary to state that the
learned singe Judge should have been more alive to the
provisions of the Act and the necessity of consent only of
the appellant in the facts of the case. There was no
reason whatsoever to implead the husband and father of
the appellant. We say so as it is beyond an iota of doubt
that the appellant was a destitute, a victim of rape and
further she was staying in a shelter home. Calling for a
medical report was justified but to delay it further was
not at all warranted. It needs to be stated that the High
Courts are required to be more sensitive while dealing
with matters of the present nature.
57
56. We will be failing in our duty if we do not deal with
the submission of the learned counsel for the State.
According to her, State should not be made liable
because of the fault of the Court. The principle of actus
curiae neminem gravabit basically means an act of the
court shall prejudice no man. Though such a principle
has been advanced yet the same is not applicable to the
facts of the case at hand. In A.R. Antulay v. R.S.
Nayak14, Sabyasachi Mukharji, J. (as His Lordship then
was), speaking for the majority for the Constitution
Bench, quoted the following observation of Lord Cairns in
Rodger v. Comptoir D’Escompte de Paris15:
“Now, their Lordships are of opinion, that one of
the first and highest duties of all Courts is to
take care that the act of the Court does no injury
to any of the Suitors, and when the expression
‘the act of the Court’ is used, it does not mean
merely the act of the Primary Court, or of any
intermediate Court of appeal, but the act of the
Court as a whole, from the lowest Court which
entertains jurisdiction over the matter up to the
highest Court which finally disposes of the case.
It is the duty of the aggregate of those Tribunals,
if I may use the expression, to take care that no
act of the Court in the course of the whole of the
proceedings does an injury to the suitors in the
Court.”
14 (1988) 2 SCC 602
15 (1871) LR 3 PC 465 : 17 ER 120
58
The aforesaid principle despite its broad
connotation is not attracted to the obtaining factual
matrix inasmuch we have granted compensation because
of the delay caused by the authorities of PMCH.
57. Before parting with the case, we must note that
India has ratified the Convention on the Elimination of
All Forms of Discrimination Against Women (CEDAW) in
1993 and is under an international obligation to ensure
that the right of a woman in her reproductive choices is
protected. Articles 11 of the said Convention provides
that all State parties shall ensure the right to protection
of health and to safety in working conditions, including
the safeguarding of the function of reproduction. Article
12 of the Convention stipulates that State parties shall
take all appropriate measures to eliminate discrimination
against women in the field of health care in order to
ensure, on a basis of equality of men and women,
accesses to health care services, including those related
to family planning.
59
58. The legislative intention of 1971 Act and the
decision in Suchita Srivastava (supra) prominently
emphasise on personal autonomy of a pregnant woman
to terminate the pregnancy in terms of Section 3 of the
Act. Recently, Parliament has passed the Mental
Healthcare Act, 2017 which has received the assent of
the President on 7th April, 2017. The said Act shall come
into force on the date of notification in the official gazette
by the Central Government or on the date of completion
of the period of nine months from 7 th April, 2017. We are
referring to the same only to highlight the legislative
concern in this regard. It has to be borne in mind that
element of time is extremely significant in a case of
pregnancy as every day matters and, therefore, the
hospitals should be absolutely careful and treating
physicians should be well advised to conduct themselves
with accentuated sensitivity so that the rights of a
woman is not hindered. The fundamental concept
relating to bodily integrity, personal autonomy and
sovereignty over her body have to be given requisite
respect while taking the decision and the concept of
60
consent by a guardian in the case of major should not be
over emphasized.
59. In view of the aforesaid analysis, the appeal is
allowed to the extent indicated above and the order
passed by the High Court is set aside except for the
direction pertaining to investigation carried out on the
basis of the FIR lodged by the appellant. There shall be
no order as to costs.
………………………………………..J.
[Dipak Misra]
……………………………………….J.
[Amitava Roy]
……………………………………….J.
[A.M. Khanwilkar]
New Delhi;
August 17, 2017.