Judgment link: http://indiankanoon.org/doc/156331215/
Read the two links
above.
A woman is raped
repeatedly, gets pregnant, wants to get rid of the unborn child, moves the
court, the court says, no, she will have to bear the child, howsoever traumatic
the experience of such child-bearing is.
The woman has the right
to abortion as the constitution protects her right to liberty and privacy. But
then, she has to contend with the right to her safety and the right to life of
the unborn child as well.
That the woman does not
want the child which she thinks is the fruit of rape is of no consideration
under law when she fails to contend with either of these rights. That’s the law.
Had the woman moved the
court before the foetus completed 20 weeks of existence, the law would have
agreed with her and upheld her right to abort.
Once the limit of 20
weeks, as stipulated in the Medical Termination of Pregnancy Act, 1971, is
achieved the foetus in the eyes of the law has achieved a status of “viability”,
to borrow the word from American jurisprudence.
By the time the woman
moved the court and the case eventually reached the ruling stage, she was 28
weeks pregnant. So, as per the Medical Termination of Pregnancy Act, she could
no longer abort. Under this law, abortion is legal till up to 20 weeks of
pregnancy.
After this limit, it is
presumed, backed by medical research, that a pregnant woman’s life can be in
danger if abortion is resorted to. It is also presumed, backed more by belief,
that the foetus becomes a living being only at the end of the 24th
week. That means, the foetus has the right to life after the
20th-24th week of existence in the mother’s
womb.
While there are several
scientific findings about the dangers of abortion in late pregnancy, there is
merely personal or religious belief to attest to whether a foetus has a right to
life and if so, whether from inception or at a later stage.
To digress a bit,
American philosopher and expert in constitutional law, Ronald
Dworkin, famously analysed the question of the right to life of a foetus in
terms of its “interests”.
According to Dworkin a
fetus has no interest till the completion of 24 weeks of pregnancy. Dworkin says
the foetus has an interest from the beginning of the third trimester. His logic
is that a foetus cannot feel pain in the early stages of pregnancy as its brain
is insufficiently developed before then. He bases his logic on the premise of
scientists the brain of a foetus is developed to feel pain from the
24th-26th week. So Dworkin argues that whether or not an
abortion is against the interest of the foetus depends on whether or nor the
foetus it has interests.
The direct
interpretation is that as the foetus does not have a developed brain before this
period, it does not have an interest before that period and therefore an
abortion of that foetus before that period is not against the interests of such
a foetus. Conversely, the foetus develops an interest after the
24th-26th week because its brain develops to a sufficient
extent and therefore it has a right to life.
By extension, it is
medically acknowledged that after this period, an abortion can endanger the
mother’s life.
More or less, these
twin grounds are accepted in those countries where abortion is legal before the
end of the 24th week of pregnancy. In India
In the case of this
woman, Justice JB Pardiwala of the Gujarat high
court, though not really convinced of the rape which he did not allow to hinder
his ruling, said he could not change the law.
In his ruling, the
judge referred to the entire gamut of legal discourse and interpretative
analysis on abortion and rights of both the mother and the foetus but his ruling
limited itself to one, single point of law: The expiry of the 20-week limit for
legalized abortion.
I quote from the
judgment:
“I am conscious of the
fact that to carry a child in her womb by a woman as a result of conception
through an act of rape is not only extremely traumatic for her but humiliating,
frightening and psychologically devastating and as a human being, more particularly in the Indian society she becomes
an object of scorn and ostracisation. (emphasis mine) ….I may
only say having regard to the peculiar facts and circumstances of the case that
the applicant will have to bravely go ahead with the pregnancy and when time
comes, she should deliver the child. I am conscious of the fact that it
is easy for a judge to say so in his
judgment because it is ultimately the applicant who will have to face the hard
days ahead, (emphasis mine) but as observed above, howsoever
harsh one may find the law, yet it
remains the law and one has to respect it. (emphasis mine) She
must understand that termination at this stage will put her own life in
peril.”
Having gone through the
judgment, it can be said it is the product of a progressive mind who is
conscious of the impact of the limitation of this law on the woman.
But try telling this to
that woman.
It is she who was raped
(the investigation to conclusively prove rape is still going on at the time of
writing).
It is she who became
pregnant. It is she who did not want that child.
It is her husband who
told her he would throw her out of their house if she bears that child.
It is she who hears the
neighbours’ taunts, her in-laws’ grunts.
It is she who is now
told to grin and bear the trauma of her rape.
It is she who is now
forced to give birth to the child.
It is she who after
child-birth will be squeezed between the natural pangs of a mother and the
tearing hurt of a rape victim.
The rapist did not
leave her with a choice.
Her family and friends
never gave her a choice.
The law of the law did
not have a choice.
What is she more a
victim of – the crime or the justice?
A law which cannot
accommodate the angst of a victim is not universal in nature. At the same time,
no law can ever bring every human circumstance under its scope. It is when law
faces the exceptions that the custodian of the law is put to the ultimate test:
How to be imparting justice and importantly, ensuring that the justice is just.
Post-Script: The
woman’s husband says he will move the court immediately after the child is born.
The child will now inherit its mother’s trauma and humiliation.
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