Print edition : February 07, 2014

THE term “judicial activism” is generally understood in a pejorative sense as the dividing line between activism and overreach is often blurred. While “judicial activism” refers to the tendency of the judiciary to carry out the functions of the executive and the legislature when they are perceived to be inactive, “judicial overreach” implies that the courts seek to perform certain functions which rightfully belong to other organs of the state. Very often, courts are faced with the dilemma of deciding whether a particular plea for their intervention means activism or overreach. In such cases, the correctness of the court’s decision may have to be tested by the outcome, which usually takes a few years.

In 2009, when the Supreme Court was called upon to hear an appeal against the Punjab and Haryana High Court’s refusal to allow a woman to carry her pregnancy beyond the 20-week period in view of her mental retardation and the perceived risks involved in continuing the pregnancy, many said the Supreme Court should not have interfered with the High Court’s decision and that the decision should have been left to the doctors who treated the mother as she was incapable of deciding for herself.

The Supreme Court in Suchitra Srivastava vs Chandigarh Administration (the petitioner was an advocate who represented the pregnant mother, as the Chandigarh administration, which maintained the welfare home where she resided, favoured the termination of the pregnancy) found merit in the medico-legal consensus that late-term abortion could endanger the health of the woman who undergoes it. The court was clear that the mother’s reproductive choice should be respected in spite of other factors such as her lack of understanding of the sexual act, the apprehensions about her capacity to carry the pregnancy to its full term and her ability to assume maternal responsibilities thereafter. The court interpreted Section 3 of the Medical Termination of Pregnancy (MTP) Act to mean that even a woman who is mentally retarded should give her consent for the termination of a pregnancy. The court reasoned that in the case of pregnant women, there is also a “compelling state interest” in protecting the life of the prospective child.

Special case

The Supreme Court heard the appeal as a special case within four days of the High Court’s verdict in Chandigarh Administration vs Nemo as the deadline for taking a decision on ending her pregnancy was approaching. The Supreme Court first stayed the High Court’s judgment, and gave the reasons later. The National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities stated that it would look after the child if it was born with any disability. The Disability Rights Group also offered to look after the child.

In retrospect, it appears that the Supreme Court’s intervention was justified and it helped protect the mother’s rights under the MTP Act. During the hearing, the then Chief Justice of India K.G. Balakrishnan, who headed a three-judge Bench, reasoned that pregnancy complications could happen to any normal woman and that could not be a ground for terminating pregnancy in the case of a mentally retarded woman. He said the termination of pregnancy could aggravate her trauma as she was mentally looking forward to seeing her child. The Bench relied on the opinions of the psychiatrist and the gynaecologist who knew her that she could safely deliver the child and that she was physically fit for delivery. The MTP Act distinguishes mentally ill persons from the mentally retarded because the latter, though slow in learning, are capable of deciding for themselves the question of terminating their pregnancy. The Supreme Court drew attention to the fact that empirical studies had conclusively disproved the eugenics theory that mental defects are likely to be passed on to the next generation. This theory was used in the past to perform forcible abortions on mentally retarded persons, the court noted. “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,” the court held. The court further observed that a person with a low intelligence quotient (IQ) or mental age might possess the social and emotional capacities that would enable him or her to be a good parent. The court thus concluded that her pregnancy could not be terminated without her consent and proceeding with the same would not have served her “best interests”.

The MTP Act respects the personal autonomy of mentally retarded persons who are above the age of majority, the court held. The court said there was a need to look beyond social prejudices in order to objectively decide whether a person with mild mental retardation could perform parental responsibilities. In view of the findings recorded by the expert body which had examined the woman that the continuation of pregnancy did not pose any grave risk to her physical or mental health and that there was no indication that the child was likely to suffer from a congenital disorder, the court directed that the best medial facilities be made available to her during and after her pregnancy.

Today, as mother and child prove the pessimists wrong, the Supreme Court stands vindicated in its timely and effective intervention to protect a silent mother’s rights to deliver and rear her child.

V. Venkatesan

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