It was a dramatic hearing characterised by unusual human interest on both sides. The SLP against Chandigarh Admn v. Nemo was heard by the Supreme Court within four days of the High Court verdict as a special case, in order to render justice to a mentally retarded and abandoned girl, an inmate of Nariniketan, Chandigarh, who was expected to terminate her 19 week-pregnancy following the HC verdict. I need not deal with the facts of the case, as one can know the facts from the HC judgment linked to in my last post. Today, after two hours of arguments, the Supreme Court stayed the HC judgment, and indicated that it would give the reasons later.
The petitioner was ably represented by Tanu Bedi, who continued her arguments which she began yesterday. The Chandigarh Admn was represented by Anupam Gupta. Tanu Bedi began her arguments today by referring to the mandate of Article 39, but the Bench stopped her from going ahead saying that it was all clear and wanted to know who would look after the child when born, as it was convinced that the mother could not rear the child after birth.
The National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation & Multiple Disabilities, established in 1999 through an Act of Parliament, came forward to look after the child, if born with any disability. The Disability Rights Group also came forward to look after the child after birth.
Anupam Gupta said the HC judgment was the most practical way out of this dilemma and suggested that if the pregnancy continued, according to medical reports, it would further affect her mental health. The Bench comprising the CJI, Justice Sathasivam, and Justice B.S.Chauhan, however, made up its mind during the hearing, to stay the HC judgment for valid reasons. First, The CJI believed that if there were risks in continuing her pregnancy, nature would correct the risks. Second, if continuation of pregnancy could affect mental and physical health of the mother, doctors would be able to treat her, if there are fresh complications. Third, it appeared to the CJI that the Chandigarh Admn was anxious to terminate only because of the legal stipulation that it could be done only within 20 weeks of pregnancy. There have been no complications so far, and it is unreasonable to be pessimistic about the possibility of her safe delivery.
The CJI was of the view that pregnancy complications could happen to any normal woman, and that cannot be a ground for terminating in the case of a mentally retarded woman. The CJI said termination could aggravate her trauma, as she is mentally looking forward to seeing her child, though she is incapable of rearing the child herself. To a question whether the U.T.Admn will take care of the child, Anupam Gupta appeared pessimistic about finding the right persons for the task. He also said none of the institutions or trusts had offered to help during the HC’s hearing. To this, the Bench said since the SC is hearing the SLP, some institutions have come forward, and it is likely that some sincere parents too may come forward to take care or adopt the child. Anupam Gupta began his arguments quoting Oliver Wendell Holmes, but it failed to convince the Bench.
Colin Gonsalves, who appeared for a social worker pleading for abortion, suggested there are increased chances of abortion, if the pregnancy continued. The Bench wanted to know from the psychiatrist and the gynecologist who knew the patient, and who were present during the hearing whether continuation of pregnancy would affect the mother’s health. When they answered that she could safely deliver the child, and that she was physically fit for delivery, the Bench concluded that HC order had to be stayed. The Bench was not persuaded by the suggestion that she would not be able to cope with pregnancy.
It will be interesting to read the reasoned order in due course, and also follow the health of the mother and the child, to know who is vindicated in this case.
UPDATE: Ms.Tanu Bedi was kind enough to clarify some issues in this case. As she rightly points out, the MTP Act, as amended in 2002, defines in S.2(b) “mentally ill person” as a person who is in need of treatment by reason of any mental disorder other than mental retardation;’.
Section 4(b) makes it clear that if the woman is not a mentally ill person, then her pregnancy cannot be terminated except with her consent. As Tanu Bedi pointed out, the woman in question is mentally retarded and not mentally ill.
Now, why did the Act exempt mentally retarded woman from mental illness? Because, the Act assumed that mentally retarded persons are slow in learning, but capable of deciding themselves.
Even as this distinction is compelling, Chandigarh Admn’s counsel, Anupam Gupta, points out to me that it is important to read the HC’s first judgment wherein the HC extensively dealt with this issue, and agreed with him that it is not correct to read the MTP literally, as she is not in a position to give her consent as per the Act. I invite the readers to reflect on this complicated case, and let me know if they have any questions further to ask the counsel.
Thanks VV for your excellent coverage of this interesting case. What is also important to note is that simply because the woman is mentally challenged does not allow the State to perform invasive medical treatment (the abortion) on her. Unless she is under a life-threatening condition and is mentally unfit to give consent to treatment, she must be allowed to determine what medical treatment to undertake. In this case, there is no abortion required to save her life – her life is not at risk. Hence, the choice must be left to her. At the end the decision to have an abortion or to have the baby must be left with her, despite her mental condition.
This is interesting: http://www.talkleft.com/story/2003/05/24/722/21907
I am looking for the case, but it seems that in this case the facts were reverse – the mentally challenged person wanted the abortion. That is a slightly more complex situation, but if those were the facts I tend to agree with the florida court's ruling.
VV,
Thanks for the update. With the committee's opinion fairly clear, the matter appeared straightforward. But more broadly, I wonder what the basis for parens patriae power might be with regard to the mentally retarded. For the mentally ill, the power to appoint a guardian flows from Chapter VI of the Mental Health Act, 1987. But the term is everywhere defined to specifically exclude mental retardation. So, suppose this woman had suffered from moderate to severe mental retardation, there does not appear to be any provision to appoint a guardian under either the MTP or the Mental Health Act. The court may do a cost-benefit analysis like it did here to decide whether aborting the fetus is in the best interest of the woman but such a determination may be technically violating s.3(4)(b) of the MTP Act ('…no pregnancy shall be terminated except with the consent of the pregnant woman'). Seems like a lacuna in an otherwise liberal abortion act.
VV,
Thanks again for the update. I did find after reading the first part of the judgment that the National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 provides a basis for appointment of a guardian to the mentally retarded but the power is devolved to locally constituted committees rather than the High Court.
A couple of other thoughts. The MTP Act nowhere refers to socioeconomic grounds as reasons for termination; so even if someone were to decide on behalf of an individual, could the best interest of the person be determined on those grounds?
Secondly, the High Court invoked Explanation 1 to section 3(2) (see para 31 of the recent judgment), namely, anguish caused owing to rape as a ground to justify termination. The court's evidence that she no longer likes to watch TV is unconvincing at best. The expert body noted that while she was anguished by the act of rape itself, she did not quite make the connection between that and the pregnancy that followed and was happy about having the baby. That suggests that the anguish of carrying the fetus conceived with the rapist is of the bystander and not the person herself. That may be even more true in case of a more severely retarded woman and if this reasoning is followed, explanation 1 could probably not be invoked at all in case of a mentally retarded person. If as in this case, a definitive assessment of risk of abnormalities to the child cannot be made and no exceptional risk to maternal health is made out either, I wonder which provision of the MTP the court could invoke even under its parens patriae power to order termination of a pregnancy.
High Court judgment was patently illegal, in violation of all human right norms and amounted to judicial murder. Supreme Court had to reverse the same and fortunately it did.
My concern stems from the view of the child as well as that of the support structures available to the mother.
Article 3 of the CRC, together with Article 12 of the Convention on the Rights of Persons with Disabilities (CRPD), would suggest that even if the pregnancy is not terminated at this stage, the sole parent definitely will not be allowed to keep the child. I only mention this as a word of caution to the DRG and other such groups who are championing the right to chose in this particular case for fear of setting bad precedent, but may then be stuck with a consequent finding of her being found an unfit parent under other applicable law/s. With no alternative or assistive parental support available (no father, no grandparents or other relatives), it is highly likely that she will not be granted the custody of her child if the interest of the child is kept paramount.
In my limited personal interaction with parents and other care providers who have experience with the National Trust, it is far from a decent option for the well-being of any child. Especially more so, in the case of a child on whom nobody will ever be able to check follow-up, given that the mother herself is in institutional care and has no relatives who have come fwd. Moreover, the NT clearly have stated a caveat, dictated by their statutory mandate – they can only care for the child if born with one of the disabilities that the NT was set up for and, I can assure you, no other.
As for the DRG, its a informal coalition of various disability group HQed in Delhi with NCPEDP. Until things have drastically changed in the last 3 yrs., they do not even meet on a regular enough basis to arrive at a consensus on basic issues. I cannot fathom under which law they would seek or be appointed care providers for this child. And if that hurdle can be cleared, then who exactly from amongst them would be the guardian is unclear from this very generous but sadly facetious offer.
It isnt a simple situation and definitely has no easy answers. I have poured considerable thought into the situation and the one potential remedy is that of clarifying the paternity of the child, once born, and ensuring that a portion of the (rapist) security guard of the govt institution be directly deposited with the institution or trust that were to finally be appointed as the formal care provider for this child. It could also amount to awarding a punitive and reparative damage to the mother in this case.
But whichever way we spin it, I cant seem to satisfy Article 3 of the CRC. How are any of these options (or decisions) fuelled by the interest of the (future) child? They are presently only dictated by the right to chose and right to parenthood of the 19 yr old orphan girl living in govt. institutional care. Mired as the issues are, the perspective of the SC discussion will need to reflect more comprehensively on all these interconnected issues (and steer clear of what clearly is NGO agendas!).