May 2: The Rajasthan High Court on Friday reiterated that a woman’s “reproductive choice” is a fundamental right, and asserted that the fundamental right of a child rape victim to abort her pregnancy “heavily outweights” the right of the foetus to be born.

In doing so, the bench comprising Justice Pushpendra Singh Bhati and Sandeep Mehta set aside an order passed by a single judge in October last year, when the court had held that the foetus had a right to life under Article 21 of the Constitution, The Print reported.

The court also gave certain directions for the authorities to deal with cases of pregnant rape victims.

The bench ordered the state government to frame guidelines for timely medical and legal assistance for pregnant rape victims. It ordered that any abortion application by her must be processed by the authorities within three days and if a court considers the case, then consent from the girl’s guardian should be considered sufficient.

The court also directed that if the pregnancy crosses the 20 week threshold, as per the Medical Termination of Pregnancy Act, 1971, the District Legal Services Authority should assist the girl in approaching the high court for an abortion.

The case involved a 17-year-old minor rape victim who had approached a POCSO judge last year for an abortion. The lower court, however, denied her request in September, noting that she had already crossed the 20-week pregnancy limit imposed by the 1971 Act. The girl then approached the high court, which in October last year rejected her petition, while highlighting the foetus’ right to life.

“Hence, right to life of the foetus is also required to be considered. Right to life guaranteed by the Constitution of India under Article 21 of the Constitution of India, cannot be invoked for the victim alone. Protection of Article 21 is as much available to the child to be born, unless protection of foetus poses an eminent threat to the life of the mother,” the court had observed. It had then denied the abortion, while allowing an application filed by an organisation called Navjeevan Sansthan to take the child’s custody.

This order was now challenged before a two-judge bench of the court by the state government, “to protect the rights of the possible victims”. The government claimed that the judgment violated the fundamental right of rape victims to get an abortion.

According to the judgment, the state government now asserted that in case of a rape victim, “her fundamental right to live as a normal person without undergoing the trauma of giving birth at such a tender age would have to be given precedence over the fictional fundamental right of the child yet to be born”.

It contended that in such cases, the right of pregnant rape victims to get an abortion should be unconditional, irrespective of the length of pregnancy.

The state government also took objection to the single judge’s observation that the court had been approached by the girl’s widowed mother who “cannot possibly perceive the feeling of a mother carrying a baby”. This, it said, was “rather humiliating to the widowed mother”.

The NGO, Navjeevan Sansthan, on the other hand, supported the court’s 2019 judgment, submitting that the appeal should be rejected as the victim must have delivered the child by now and so, the issue in the case was “rather academic in nature”.

The court, however, agreed with the state government and set aside the challenged judgment, observing that the girl’s request to get a pregnancy terminated should have been allowed.

In doing so, the court took note of the delays caused in the original case “because of red-tapism and systemic indifference”, and also took objection to the judge’s remarks about the victim’s mother.

While the court had sought response for the minor girl as well, she did not participate in the proceedings. But the court directed the District Collector, Jodhpur to ensure that the child born to the original petitioner should be taken care of, and that if the child is not adopted, he or she should be admitted to a good school.

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