Spotlight

Her story

Print edition : February 07, 2014

Srishti and Sathyam playing on the premises of Ashreya. Photo: Divya Trivedi

After winning her right to bear her child, an intellectually disabled rape survivor proves pessimists wrong about the child’s well-being.

IN a landmark case, a 19-year-old intellectually disabled survivor of rape who became pregnant was allowed to have her child. With the child now four years old, how has she coped with motherhood?

In 2009, Savita (name changed), the resident of a government-run shelter home in Chandigarh, was found to be pregnant. She was labelled “mentally retarded” with the “IQ of a nine-year-old”. The Chandigarh administration ordered an abortion, which was seconded by a Division Bench of the Punjab and Haryana High Court. But Savita conveyed her decision to doctors that she wanted to keep her child.

When the Chandigarh administration approached it with a request to terminate Savita’s pregnancy, the High Court constituted an expert body consisting of medical professionals and a judicial officer for a thorough inquiry into the facts of her case. But despite the expert body’s finding that the victim had expressed her willingness to bear a child, the High Court, in its order dated July 17, 2009, directed the termination of the pregnancy.

Savita’s unequivocal stance and the perseverance of certain individuals brought the matter to the Supreme Court, which expedited a hearing and stayed the High Court’s judgment. She was 19 weeks pregnant at the time. Under the Medical Termination of Pregnancy (MTP) Act, 1971, termination of pregnancy is permitted until the 20th week. The Supreme Court heard the matter in record time to accommodate this time frame and allowed Savita to bear her child (see box). Sections of civil society and the media were surprised at the judgment and expressed concern about the mental condition and indeed the future of the child. Thereafter, Savita identified the perpetrators and abettors of the crime, seven men and two women, all of whom got 10-year prison terms.

The court also imposed a fine of Rs.2,000 each on the convicts. The men were charged under Section 376-2(C) of the Indian Penal Code for sexually exploiting the victim, and the women were held guilty under 120-B of the IPC (conspiracy) and for destruction of evidence. The judge observed that the case was an eye-opener and showed the state of affairs in institutions that were meant for the welfare of the destitute. The court also reminded the state that it was its responsibility to take care of the child, more so because it was the state’s employees who were responsible for the situation.

Today, the child, Srishti (name changed), over whose birth a battle was waged, is happy and content. As she sits in her mother’s lap in her lavender sweater, matching shoes and well-combed hair, she puts to rest all doubts anybody may have had about her well-being after birth. For the past two years, she has been attending a play school, experiencing a slice of reality different from the one she sees at home, a single-storeyed, large, red-brick building with a garden and terrace, called Ashreya, which she shares with several intellectually disabled persons (22 women and seven men in separate wings).

Geeta Bajaj, a special educator appointed by the National Trust, which comes under the Union Ministry of Social Justice and Empowerment, visits the home twice a week and trains the mother and the child. With her help, Savita has learnt embroidery and now creates colourful bags, mobile phone covers and table mats with ease. “Initially, when I used to visit daily, I used to train her in simple cutting, pasting and colouring to enable hand-eye coordination. Now she has learnt how to write her name, Srishti’s name and Srishti’s school name as well,” says Geeta.

Besides, she is slowly grasping the concept of time and money. Savita has a penchant for cleanliness and hygiene and has become a good housekeeper, with her prospects of being employed as an attendant getting brighter by the day. Geeta also provides her counselling by talking to her about day-to-day life, about sharing the small items that she gets such as shampoo and chocolates with other residents of the shelter home, and about what is good for Srishti and what is not. Plans are on to get Srishti a tutor and, when the time comes, to enrol her in a boarding school. While Savita wants her to be a doctor when she grows up, the child says she wants to be “madam”, or a teacher. Her mother’s indulgent look assures Srishti that she shall be whatever she chooses to be. For now, she is happy playing with Sathyam (name changed), another child at the shelter home.

People associated with her story consider it to be a sort of a miracle that changed the way things were run in several shelter homes of Chandigarh and especially in the home she stays in. The joy Srishti brings to the intellectually disabled women here is difficult to miss. Stories abound of how the women rallied around her and her mother and continue to be involved in Srishti’s upbringing. Initially, Savita was reluctant to clean and wash the child and would ask other residents to do so, but over time she has learnt that it is her duty to do it, says Geeta. “They are so affectionate towards the two, Srishti and Sathyam, that it shows in small things. For instance, if they receive food packets or chips from outside, they save a little in their bags for the children. It may seem like a small thing, but this is their way of showing their love,” says Geeta.

It is a community Srishti is growing up in. Several of the residents in the shelter home have no address, and no one knows where they came from or if they have families waiting for them, but here they are family to each other. Aged between 12 and 60 years, they share their joys and sorrows with each other. As for the question of whether the atmosphere is conducive to the growth of Srishti and Sathyam, Geeta says they learn some things right and some things wrong as well, which is why she wants them shifted to a hostel at some point of time.

The despicable state of shelter homes across the country, with a few exceptions, has been reported on extensively. Government-run homes for the disabled, the elderly, women, juveniles and orphans lack not only infrastructure and civic amenities but also sensitive and trained personnel. Tanu Bedi, additional amicus curiae for the ongoing 2009 Chandigarh Administration versus Nemo (Nemo meaning no one or no man) in the High Court, has been taking active interest in the state of other shelter homes in Chandigarh since her involvement with Savita’s case. With each hearing, she has tried to place a matter before the court to help improve conditions in these homes.

In a 2012 hearing of the case, the term “inmates” was dropped. The application said: “The persons living in the shelter homes be addressed as residents and not inmates as the latter is essentially an indicator towards a person confined in jail, hospital, asylum, etc., where there are restraints on the movements of the people. And perhaps by using the word inmates over time for the persons living in the shelter homes, it had been assumed that the persons who happen to live in shelter homes lose all of their rights including the basic right to freedom and are at the mercy of the government.”

Persons living in shelter homes are also cut off from the outside world. But Geeta, who has been working with Bhavan Vidyalaya School in Chandigarh, says in her experience visitors coming to the home and residents going out on excursions help prevent and expose abuse taking place inside institutions. The same court decree that ordered the dropping of the term “inmates” also approved monthly outings by the residents. It passed an order for the renovation of bathroom and other fixtures of homes in mid-November 2012 and re-emphasised it on January 10 this year. It applies to the renovation of all shelter homes run by the Chandigarh administration’s Department of Social Justice and Welfare. On January 10, the court placed a ban on any kind of corporal punishment of the residents.

“These are small steps that are becoming possible with this one case. But we realise we cannot rush to the court for every small thing and are now looking at laying down procedures that are systemic in nature,” says Tanu Bedi.

Court’s intervention

But the court’s intervention has been vital. There would have been no Srishti today had Chief Justice K.G. Balakrishnan and Justices P. Sathasivam and B.S. Chauhan not heard the case in record time and had a young lawyer, Tanu Bedi, not argued the case passionately on July 20, 2009. “When I started off on the case, the only argument for me was that it was Savita’s life and only she had the right to decide whether she wants to give birth to the child or not. But it soon became clear to me that the law also was on her side,” recalls Tanu Bedi.

The question was whether a court could direct the termination of a woman’s pregnancy against her expressed desire to bear a child. This was helped by the provisions of the MTP Act, the only law that saves termination of pregnancy from being a penal offence. The state, on the other hand, felt that a woman who wanted her child even though conceived through rape would be incapable of being a good mother since she had a low IQ, no finances and no social support and was residing in a state-run institution.

Under the MTP Act, the consent of the woman is of prime importance. In the case of a minor or mentally ill person, the consent of a guardian is required. In the statute, the definition of mentally ill person excludes “mentally retarded” person. In other words, termination of pregnancy is not allowed in the case of a “mentally retarded” person without her consent. By excluding “retarded” women from the definition of mental illness, the law has bestowed on them the right to consent.

The Supreme Court’s decision hinged on two broad considerations. Firstly, whether it was correct on the part of the High Court to direct termination of pregnancy without the consent of the woman in question. Second, even if the said woman was assumed to be mentally incapable of making an informed decision, what were the appropriate standards for a court to exercise parens patriae (parent of the country) jurisdiction? If the intent was to ascertain the “best interests” of the woman in question, the court opined that the direction for termination of pregnancy did not serve that objective.

The United Nations Declaration of 1971, the National Trust Act, 1999, and the U.N. Convention of 2006 for Disabled Persons (specifically Article 1, 17, 22 and 23) protect the rights of so-called mental retardees and put them on a par with non-retardees.

The larger questions the Chandigarh case has addressed is whether mentally and physically disabled people have an agency or the right to make their life choices. All persons are equal before the law but not people with disability, says Poonam Natarajan, Chairperson of the National Trust, who took an active interest in the case. “When the girl first told doctors she wanted to keep the child, they didn’t believe her. When the judgment came, many people thought it was a weird decision. Many women with disability screamed at me,” she says.

Poonam Natarajan says that if we believe in the rights of people with disabilities to make choices, we cannot decide whether the choice they make is right or wrong. India has ratified the U.N. Convention on the Rights of Persons with Disabilities (UNCRPD). It views the disabled as equal and contributing members of society. While it recognises that people with disabilities will require support to participate equally in society, this support is to be seen as a matter of right and not as something extra that governments and societies have to provide.

Apart from recognising persons with disabilities as equal holders of all rights, the UNCRPD places them at the centre of all rights. It is perhaps for this reason that even though families are seen as the major support for persons with disabilities, the rights and entitlements still belong to the person. Article 12 of the convention specifies that persons with disabilities have equal right to property and control of their own financial affairs and to equal access to bank loans, mortgages and other forms of financial credit. State parties are to provide safeguards against abuse in the exercise of their legal capacity, the convention says. At present, disabled people have the right to inherit property but not the right to decide what to do with that property.

Poonam Natarajan says that disabled people are not passive beneficiaries of the state’s or society’s largesse but contributing members and that the whole discourse is moving from substitutive decision-making to supportive decision-making. “If I don’t have hands and somebody feeds me, it doesn’t mean that I am dependent. I need support but I am still independent,” she explains. She raises the question of IQ that the court used against Savita and says, “Her IQ score said nine years old, but there is something called a chronology of a life experience, there is an emotional life, there is something called multiple intelligence and something called an emotional quotient.” This case proves that the conception of being able to measure intelligence itself is a flawed one and needs a relook.

Finally, Poonam Natarajan talks of an exit policy for the residents of shelter homes. The ultimate victory will be to break down these faceless institutions and enable residents with skills to earn a livelihood in community-assisted living programmes or retirement villages. Is this not too distant a dream? “They used to say this to women as well when we spoke of our rights. Look where we are now,” she says.

And the same goes for Srishti and her mother. A single judgment gave people like them hope. But the struggle has far from ended. For every small right that other people may take for granted, Tanu Bedi has to approach the court. Srishti and Sathyam were not even allowed to play in the park right across the street, but now that has been relaxed. Their plea for a tutor at home has been pending for the past six months. While plans for Srishti’s future have to be made, for now, Tanu Bedi’s focus is on how to convince the court to allow the retention of Geeta Bajaj as the special educator and not replace her with the state’s representative.

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