Jahanvi Agarwal
On August 21st, the Supreme Court of India harshly criticized the Gujarat High Court by stating that any court that issues an order overturns a superior court’s decision, is against constitutional philosophy.
The case in hand involves a petition filed by a rape survivor seeking permission to terminate her pregnancy. The Supreme Court’s strong remarks came after the high court passed an order on August 19th, even after the Supreme Court listed the matter for today. Although the petitioner had been denied relief by the High Court, the Apex Court has now approved the termination of her pregnancy.
The Supreme Court Bench consisting of Justice B V Nagarathna and Justice Ujjal Bhuyan pronounced that following after being informed of an order by the High Court on Saturday i.e., 19th August 2023:
“What is happening in Gujarat High Court? No court in India can pass an order against a superior court order. It is against constitutional philosophy.”
The Gujarat Government was represented by Solicitor General Tushar Mehta, who claimed that the order passed on 19th August 2023 (hereinafter referred to as ‘Saturday’s order’) was simply made to fix a “clerical error”.
He further stated that:
“The earlier order included a clerical mistake, which was fixed on Saturday i.e., 19th August 2023. It was a misunderstanding. We as the state government will request the judge to recall the order.”
This comes after the Supreme Court on Saturday flagged the delay by the High Court in deciding the rape survivor’s petition, saying “valuable time” has been lost. The division bench of Justice Nagarathna and Justice Bhuyan then said they would hear the matter today.
The Supreme Court on Saturday sent notifications to the Gujarat government and other parties, criticising the “lackadaisical attitude” of the High Court and asking for their comments about the woman’s appeal.
The 25-year-old’s lawyer informed the Supreme Court that the case would be heard the next day after she appeared before the court on August 7. On August 8, the high court ordered the medical board to investigate the petitioner’s pregnancy and her health condition.
On August 10, a medical college conducted an examination of the rape survivor, and the lawyer representing the petitioner stated that the study had determined that the pregnancy could be terminated.
The report was taken into consideration by the top court on August 11; however, the subject was “strangely” listed 12 days later, “losing sight of the fact that every day’s delay was crucial and of great significance having regard to the facts and circumstances of the case”, the Supreme Court stated.
The bench additionally made note of the petitioner’s lawyer’s statement that the high court had rejected the plea on August 17 without providing any explanations/reasons and that the ruling had not yet been posted on the high court’s website.
The lawyer representing the petitioners then informed the court that the petitioner will soon be in the 28th week of pregnancy and suggested that a new medical report be requested. The petitioner was then ordered by the court to show up once again before the medical board.
The Supreme Court today on 21st August 2023 approved pregnancy termination following the new examination. It was held that:
“Subsequent to the medical procedure to be carried out, in the event the foetus is found to be alive, the hospital is to give all facilities including incubation to ensure the foetus survives. The State shall then take steps to ensure the child is adopted in accordance with law.”
Case Name: XYZ v. State of Gujarat
Bench: Justices BV Nagarathna and Ujjal Bhuyan