By C.S. Raghuraman, Legal Advisor, Hyderabad
Medical Termination of Pregnancy Act, 1971 (Known as ‘The MTP Act) in Indian Law which declares that ‘Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman’ giving the mother complete freedom to go for termination of her pregnancy, giving immunity to doctors carrying out termination, there is no specific provision in UK The Abortion, 1967 (Known as ‘The Act’) on ‘the termination of pregnancy caused by rape’ upon a woman. In comparison to Explanation | to Sec. 3 (1) of ‘The Where any pregnancy is alleged by the pregnant woman to have | been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman’ giving the mother complete freedom to go for termination of her pregnancy, giving immunity to doctors carrying out termination Legal Position in England Therefore, prior to The Act, criminal prosecutions against doctors ‘for unlawful termination of pregnancy’ were usually brought for an offence, being a serious offence with punishment that may extend to imprisonment for life, under Sec.58 of The Offences against the Person Act, 1861 (Known as ‘The OP Act). The decision of Lord Justice MacNaughten in Dr. Bourne (R V. Bourne (1938) All ER 615) is the single authority on this issue. The criminal charge against Dr.Bourne was that he ‘unlawfully procured the abortion of a girl of 15 years age’ by carrying out a surgery on the girl who became pregnant no doubt as result of rape’. Lord MacNaughten (at pages 619, 621) nicely and neatly explained to the jury the existing state of law in UK when he stated that ‘in view of the age of the girl and the fact that she had been raped with violence, Bourne thought that the operation ought to be performed as the mental effect produced by pregnancy must be most prejudicial.’ Lord McNaughten also informed the Jury about ‘the divergence of the view about abortions in the medical profession. Some hold the opinion that when a woman desires the operation, it is sufficient justification for it. That it is not the law. The desire of a woman to be relived of her pregnancy is not justification for performing the operation. On the other hand, there are people who form on religious reasons, object to the operation being performed at all, in any circumstances. That is not the law either. On the contrary a person who holds such view ought not to be a doctor as where the life of the woman can be saved by the operation and he refused to perform it on religious reasons he will be in grave danger(in law). Then speaking about ‘the difficulty in abortions,’ compared to the other surgeries like removing an arm,
leg etc, where ‘the potential life of a child is destroyed, Lord MacNaughten said that ‘the law always held human life sacred, and the protection to it extends even to the unborn child in the womb. The child in the womb must not be destroyed unless the destruction is done for the purpose of preserving the yet more precious life of the mother’. Then finally coming to provision in The Infant Life (Preservation) Act, 1929 (There is no similar legislation in India to compare with UK law) which declares that “any person who, with intent to destroy the life of a child capable of being alive, by any willful act causes a child to die before it has an existence independent of its mother, shall be guilty of felony, of child des5truction, and shall be liable on conviction for life: provided that no personal shall be found guilty of offence.unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother”. (known as “The IL Act’), Lord Justice McNaughten also said ‘that no one is to be found guilty of the offence of ‘child destruction’ unless it is proved that the act which caused the death of the child was not done in god faith for the purpose only of preserving the life of the mother. Ultimately Mr.Bourne was ‘found not guilty since ‘what he did was done in good faith in the prevailing situation’ as ‘abortion was carried out to avoid mental anguish to her though not to avoid any immediate danger to the life of the mother. Legal Position in India Explanation | to Sec.3 (1) of the MTP Act ‘specifically permits termination of pregnancy caused due to rape upon the woman’’ but ‘only with her consent but no one else, ‘ if she happens to be major, and with ‘the consent of her lawful guardian, if she happens to be minor. On the vital importance of ‘her consent’ required for termination, we can refer to a recent decision of the Supreme Court India in Suchitra Srivasta and Another Giving the choice to the victim V. Chandigarh Administration (2009) 9 SCC 1) on the issue of ‘termination of pregnancy caused due to rape. The SC with Lord Justices K.G. Balakrishnan CJ, P.Sathivasam and B.S.Chauhan on the Bench, set aside the direction given for termination of pregnancy by Punjab and Haryana High Court, allowed a lady to keep her pregnancy caused as the result of unfortunate incident of rape upon her because she expressed ‘her willingness to preserve her pregnancy even while she was diagnosed to be suffering from mental retardation but not mental iliness—by distinguishing between mental illness and mental retardation by referring to other Acts, like The Persons with disabilities ( equal Opportunities, Protection of Rights and Full Participation ) Act, 1995 as there is no legislative guidance on this aspect in The MTP Act— after examining the two conflicting Reports of Medical Experts (The 1* report was prepared on the order of the High Court ‘recommending termination’ and 2 report was prepared on the order of the SC ‘supporting preservation of pregnancy)’ given on the status of her physical and mental health ultimately deciding in favor of preservation rather than termination. The High Court had appreciated and assessed the expert opinion given by a team of doctors appointed by it after giving due regard to the facts that ‘she did not possess T —— Some hold the opinion that when a woman desires the operation, it is sufficient justification for it. That it is not the law. The desire of a woman to be relived of her pregnancy is not justification for performing the operation. On the other hand, there dre people who form on religious reasons, object to the operation being performed at all, in any circumstances, That is not the law either T ——————
the mental capacity sufficient to distinguish between pregnancy caused due to rape upon her and normal pregnancy, cannot appreciate the burden of childbirth, nourishment to the child etc. though she was willingness to keep the child’ in ‘passing orders for termination’ in the above circumstances in consonance with the Explanation given in the MTP Act. The 2™ report declared that ‘she has mental capacity in having her choice’ This was acceptable to SC. Therefore termination was not allowed by reversing the High Court directions. It is the humble opinion of the author that ‘the offer of a voluntary women’ welfare association to ‘maintain her and her child’ also appears to be the primary reason coupled with mother’s desire to keep the pregnancy persuaded the SC in giving the decision. It also appears that the SC want to ward off any criticism that in highly controversial and debatable matter like ‘preservation or termination of pregnancy’ both in India and abroad, the choice is best left to the mother save only in exceptional circumstances. Any person who, with intent to destroy the life of a child capable of being alive, by any willful act causes a child to die before it has an existence independent of its mother, shall be guilty of felony, of child destruction, and shall be liable on conviction for life: provided that no personal shall be found guilty of offence.unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life the mother & Next In Dr. Nisha and another v. State of MP (2000 Cr LJ 671, at Page 671 paras 2, 3) the appellant and another doctor, along with the rapist (Mr. Riyaz -A-1) and two others, who took the girl to the two doctors who carried out termination of her pregnancy, were charged firstly, under Sec. 313 of the Indian Penal Code, 1860 (offence of ‘causing miscarriage without woman’’s consent’) without consent of the mother or of the girl, aged 12, who happened to be 4 months or pregnant caused due to rape by and under sec. 201 of the Code (offence of causing disappearance of evidence or going false information to screen offender’) resulting in ‘disappearance of evidence of rape’ along with the offence of rape. The appellants failed (Page at 671 para 4) on the argument that they have ‘protection under Sec. 3 MTP Act 1971 even when they terminated pregnancy’ as ‘there was consent of the mother of unmarried girl of 12 years of age, when ‘the statement of the mother given to police that ‘she never gave consent for termination of her daughter’s pregnancy’ was before the Court. Then coming to the issue of ‘framing of charges,” Lord Justice R. P. Gupta (at Page 671, 72 paras 5, 6, 7) held that ‘on the facts and circumstance of the case it appears prima facie that causing miscarriage can to taken to destroy evidence of rape and any charge under Sec. 201 has to be tied with the main charge of rape also and so two doctors can be tried along with others. In coming to the decision, Sec. 180 of Code of Criminal Procedure, 1973 (‘Place of trial where act is an offence by reason of relation to other offence’) was applied. It was correctly held that the offence of ‘miscarriage’ under Sec. 313 of the Code is ‘the methodology applied for destroying the evidence’ in case of rape and so there is no prejudice caused to the accused persons in the issue of framing of charges. LAWZ ‘27 may 2014
The Supreme Court with Lord Justices K.G. | ‘Balakrishnan CJ, P.Sathivasam and | B.S.Chauhan on the Bench, set aside the direction givenfortermination of pregnancy by Punjab and Haryana High Court, allowed alady tokeepher pregnancy caused as the result of unfortunate incident of rapeupon her because sheexpressed. | T ‘her willingness to preserve her pregnancy even ‘while she was diagnosed to be suffering from mental retardation but not mental illness—by | distinguishing between mental illness and ‘mental retardation by referring to other Acts, like | the persons with disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 as thereisno legislative | guidanceon this aspect in The MTP Act—after examining the two conflicting Reportsof Medical | Experts , |
completely forbid termination when there is a real danger to the life of the mother’ but the debate is on ‘what exactly constitute real and apparent danger’ to the mother’s life as per medical opinion. There are some proposals to change the Irish law in this respect. It is the firm opinion of the author that ‘in saving the mother’s life the Irish doctors can legally terminate her pregnancy without fear of criminal prosecution when the pregnant woman’s life is in complete danger than preserving the life of the child’ on the judicial dictum of Lord Justice MacNaughten (the same is the Indian law). In Shri Bhagwan Katariya And Others vs State Of M.P. (2001 (4) MPHT 20 CG (Chattisgarh High Court), though not a case of rape, Lord Justice R Gard rejected the bail application of Applicant Sri Katariya (father in law) and husband others of pregnant woman, Mrs. Anita on being satisfied on the basis of evidence that her ‘pregnancy was terminated forcibly without her consent’ after thorough reading of Sec.3 of The MTP Act, with police continuing the investigation about participation of doctors in this sad episode for taking appropriate action against all the persons involved. T I e Freedom to decide future
While the doctors ‘who actually carried out termination will prosecuted for offence under sec.313 of the Code, the appellant, Mr. Katariya, husband of Mrs. Anita and others ‘who forcibly brought her to the hospital for termination against her will; will rightly be prosecuted for abetment of the above offence. In conclusion, regarding the termination of pregnancy due to an unfortunate rape on a woman, there are some problems. With great respect to women, who naturally shall not come forward with an allegation of rape unless there was such unfortunate incident that may result in pregnancy, the doctors may require the woman to produce some authenticated evidence either ‘a complaint given by her or the filing of First Information Report’ before the doctors may advise her and carry out termination of the pregnancy to avoid any future criminal prosecution of doctors in such circumstances. If the above procedure is not commendable, then at least the woman or her parents or close relatives shall give an affidavit about rape on her as it will solve the complicated problem associated with the termination of pregnancy by medical practitioners. But practically, the medical practitioners will naturally advise termination at the earliest stage in the above circumstances as it saves the health of the lady. Another major problem associated with termination is ‘confidentiality to be maintained by doctors’ bringing forth a conflict between civil and criminal law. If termination is carried out in case of rape, the police may insisting doctors to pass on the information to them for proper investigation into rape, as part of their duties, to bring the criminal before the court by putting pressure on doctors as pointed out by Ms. Aarti Dhar in her write up published in The Hindu, 24th September 2013 (at page 4). The medical fraternity is torn between ‘their duty towards the patient in maintaining confidentiality’ and the ‘duty to inform the police’ about very serious offence of rape. This dilemma does not come into existence when ‘first information report or criminal complaint’is already given to the police by the victim. Suitable amendments can be brought forward to the Act.
– C.S.Raghuraman, Legal Advisor, Hyderabad