The Supreme Court on Monday took strong exception to an order passed by the Gujarat High Court which appeared to be a “counterblast” order in response to the top court’s special hearing of a pregnancy termination plea filed by a rape survivor [XYZ vs State of Gujarat].

A top court bench of Justices BV Nagarathna and Ujjal Bhuyan today allowed the abortion plea after a medical examination of the survivor indicated that she was medically fit for the procedure.

A single-judge of the Gujarat High Court had earlier rejected the plea on August 17, Friday, prompting the survivor to move the Supreme Court with an appeal, which was heard urgently by the top court on Saturday.

The Court had then called for a medical report.

However, when the matter was taken up today, the top court was informed today that the High Court, which too was working on Saturday, passed an order after the Supreme Court hearing.

By this order, the High Court rejected the plea for abortion along with reasons for the same.

The development drew harsh oral remarks from the Supreme Court bench.

“Are you supporting this? We do not appreciate the High Court passing an order as a counterblast to our order. Thank you for bringing it to our notice, but are you supporting? What is happening in Gujarat High Court?” Justice Nagarathna asked the State counsel.

“In a disposed of matter, it (High Court) passed again? How?” Justice Bhuyan asked.

“No court in India can pass an order like this on a Saturday against a superior court order. Without giving notice to the other side,” Justice Nagarathna added.

Justice Bhuyan further weighed in that the single judge’s Saturday order was “completely against settled orders” of the Supreme Court.

“There was no need for the High Court to justify,” Justice Nagarathna commented.

 “Yes. It is against the Constitutional philosophy. How can you perpetuate an unjust condition on the victim?” Justice Bhuyan further asked.

Appearing for the Gujarat government, Solicitor General Tushar Mehta replied that there was a clerical error warranting the passage of a second order in the case by the High Court.

"My lords may leave it at that. There was a misunderstanding," he added.

The Supreme Court, however, remained unconvinced.

"No misunderstanding. Why was the order passed?", the Court asked.

"This was a speaking to minutes matter," the Solicitor General started to explain.

"On a Saturday?" the Court questioned further.

 "Please treat it as withdrawn," the Solicitor General requested the Court.

"How can we withdraw a High Court order?" the Court remarked, while going on to note that the second order appeared to have been passed suo motu.

"No judge can pass an order as a counterblast to our order. This appears to be that," the bench further observed.

The Solicitor General, in turn, urged the Court not to say anything adverse against the High Court.

"It was a speaking-to-minutes order. Kindly do not say anything. We as government can ask the judge to recall the order ... Kindly ignore the High Court order. It will really have a bad effect, demoralising. Otherwise a very good judge," Mehta submitted.

The bench responded that it is not on any particular judge.

The rape survivor's counsel, Senior Advocate Sanjay Parikh, meanwhile, added that the High Court hearing may be in the public domain since the Gujarat High Court live-streams its proceedings on YouTube.

The Court, however, ultimately refrained from recording any adverse observations against the High Court in its order allowing the abortion plea.

The case involved allegations of rape on the pretext of marriage.

The Supreme Court held that the High Court's order to reject the plea by the rape survivor for a medical termination of pregnancy was ex facie contradictory.

The top court also observed that in Indian society, while pregnancy may be a source of joy for a married couple, it affects the mental health of the woman when such a pregnancy is unwanted and outside a marriage.

The bench further reiterated that a woman has a sacrosanct right to bodily integrity.

"In the context of abortion, the right of dignity entails recognising the competence and authority of every woman to take reproductive decisions, including the decision to terminate the pregnancy. Although human dignity inheres in every individual, it is susceptible to violation by external conditions and treatment imposed by the State. The right of every woman to make reproductive choices without undue interference from the state is central to the idea of human dignity. Deprivation of access to reproductive healthcare or emotional and physical well-being also injures the dignity of women."

Hence, it allowed the plea to terminate the pregnancy.

If the foetus is found to be alive following the medical procedure, the hospital is to extend all facilities to incubate the foetus and ensure the survival of the foetus, the Court added.

The State shall then take steps to ensure that the child is adopted in accordance with law, the Court ordered.

"At this stage, we restrain ourselves from observing anything on the order passed by the learned Single Judge of the High Court in a disposed of matter on 19.08.2023 pursuant to the order passed by us on the said date though we have to say that it was highly improper," the Supreme Court added.

The bench further directed that the State should take steps to preserve tissues of the foetus if it is possible so that it may be handed over to the investigating agency for DNA examination in the rape case filed by the woman in the matter.

[Read order]