Supreme Court of India
MS. ZversusTHE STATE OF BIHAR AND OTHERS
- Citation
- 2017 INSC 756
- Decided
- 17 August 2017
- Disposal
- Appeal(s) allowed
- Bench
- DIPAK MISRA
Holding
An adult rape victim with mild mental retardation may give her own consent for termination under the MTP Act, the hospital’s delay constitutes negligence warranting compensation, and the State is liable to pay Rs.10 lakhs as a public‑law remedy.
Summary
Ms. Z, a 35‑year‑old destitute woman with mild mental retardation and HIV‑positive status, alleged that she had been raped and sought termination of her 18‑week pregnancy under the Medical Termination of Pregnancy Act, 1971. The government hospital failed to perform the termination, involving the appellant’s father and husband for consent, and delayed the procedure until the pregnancy exceeded the statutory limit. The High Court upheld the hospital’s refusal, but the Supreme Court found the court’s approach erroneous, holding that the appellant, as an adult, could give her own consent and that the hospital’s delay constituted negligence. The Court applied the statutory presumption of grave injury to mental health in rape cases and rejected the State’s reliance on "state interest" and the maxim actus curiae neminem gravabit. Consequently, the State was ordered to pay Rs.10 lakhs as compensation under a public‑law remedy, in addition to the Rs.3 lakhs already awarded under Section 357‑A of the CrPC, and the High Court order was set aside except for the investigation direction.
Issues considered
- The applicability of Section 2, 3 and 4 of the Medical Termination of Pregnancy Act, 1971 to a mentally retarded adult rape victim seeking termination without guardian consent.
- Whether the hospital’s failure and delay in terminating the pregnancy amount to negligence attracting State liability.
- Whether termination beyond 20 weeks is permissible when the medical board reports risk to the woman's life.
- The effect of the statutory presumption of grave injury to mental health in pregnancies resulting from rape.
- The relevance of the State’s claim of "state interest" and the maxim actus curiae neminem gravabit to avoid liability.
- The entitlement to compensation under a public‑law remedy in addition to compensation under Section 357‑A of the CrPC.
Legislation cited
- Code of Criminal Procedure, 1973s. 357A
- Constitution of Indias. Article 11, s. Article 12, s. Article 21, s. Article 226
- Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
- Human Immunodeficiency Virus and AIDS (Prevention and Control) Act, 2017s. 10
- Medical Termination of Pregnancy Act, 1971s. 2, s. 3, s. 4
- Medical Termination of Pregnancy Regulations, 2003s. Regulation 3, s. Regulation 4
- Mental Healthcare Act, 2017
- National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999
- Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995
Subjects
Medical termination of pregnancyRape victimMental retardationStatutory consentHospital negligenceCompensationPublic law remedySection 357A CrPCCEDAWHuman rightsHIV positiveDestitute woman
Judgment
[2017]8 S.C.R.212
A MS.Z
v.
THE STATE OF BIHAR AND OTHERS
(Civil Appeal No. 10463 of 2017)
B AUGUST 17,2017
[DIPAK MISRA, AMITAVA ROY AND
A. M. KHANWILKAR, JJ.[
Medical Termination of Pregnancy Act, 1971:
C ss.2, 3 and 4 - Termination of pregnancy - Statutory right of
rape victim - Appellant, a pregnant 35 year old destitute woman,
suffering from HlV+ve, alleged rape and therefore desired
termination of her 18 weeks old pregnancy - However, hospital
authorities did not terminate the pregnancy - Writ petition by
D appellant seeking direction for termination of pregnancy - High
Court on basis of the report of the Medical Board, constituted to
examine the appellant, did not allow termination of pregnancy -
Plea of appellant that the authorities did not act with promptitude
in terminating the pregnancy and further that the approach of High
Court was wholly fallacious - On appeal, held: Appellant was thirty-
E five year old, a major - Though, she was suffering from mild mental
retardation but her condition was stable and she was able to allege
that she had been raped - Appellant had decided to excercise her
statutory right, being a rape victim, not to bear the child and more
so when there was possibility of the child likely to suffer from
F HlV+ve - Further. the Medical Board's report only stated that
termination of pregnancy may need major surgical procedure but
there was no opinion that the termination could not be carried out
or that it was risky to appellant's life - However, now in view of
medical report by AllMS that there is risk to appellant's life if the
pregnancy is terminated at this stage, the pregnancy cannot be
G terminated - There was negligence on the part of authorities in
carrying out their statutory duty, as a result of which the appellant
suffered grave mental injury - Apart from Rs.3 lakhs compensation
under the Victims Compensation Scheme as framed u!s.357A of
,, CrPC, appellant to get a sum of Rs. 10 lakhs as compensation from
H the State - The child to be born, be given proper treatment and
212
MS. Z v. THE STATE OF BIHAR 213
nutrition by the State - If appellant has any future grievance, she is A
granted liberty to approach High Court u/Art.226 after the birth of
the child - High Court's order set aside except for the direction
pertaining to investigation carried out on the basis of FIR lodged
by appellant u/s.376, IPC - The Medical Termination of Pregnancy
Regulations, 2003 - rr.3, 4 and 5 - Code of Criminal Procedure, B
1973 - s.357A - Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW) in 1993 -Arts. 11, 12 -
Penal Code, 1860- s. 376 - Mental Healthcare Act, 2017- Women
Welfare/Development - Constitution of India - Art.226.
Purpose of enactment - Held: Legislature intended to
liberalize the existing provisions relating to termination ofpregnancy C
keeping in view the danger to life or risk to physical or mental
health of woman; on humanitarian as well as eugenic grounds.
s.2- "Mentally ill person" - Distinguished from - Mentally
retarded person - Appellant, a mentally retarded rape victim, was
denied termination of pregnancy by hospital - Plea of appellant D
that she was suffering from mental retardation and not from mental
illness and thus, in view of the consent given by her for termination
of pregnancy it was obligatory on the part of the hospital to
terminate the pregnancy - Held: Appellant sujferedfrom mild mental
retardation and not from any kind of mental illness - Though she E
was administered psychiatry treatment but she was in a position to
express her consent - Under the statutory framework, she was
entitled to give her cons.~nt for termination ofpregnancy - Evidently,
she did not desire to bear a child - In such circumstances, there
was no reason on the par.t of hospital authorities not to have
proceeded for termitJation of pregnancy. F
ss.2, 3(4)- "Guardian" - Consent of - When not needed-
Appellant, a mentally retarded rape vict~m, sought termination of
pregnancy - Hospital authorities instead of proceeding with the
termination of pregnancy called the father of the appellant to sign
the consent form - Plea of appellant that she being a destitute woman G
there was no justification to obtain the consent of her father or
husband for termination of pregnancy - Held: The concept of
consent by a guardian in the case of major should not be over
emphasized - There was no reason whatsoever to implead the
husband and father of the appellant - High Court should have H
214 SUPREME COURT REPORTS [2017] 8 S.C.R.
A been more alive to the provisions of the Act and the necessity of
consent only of the appellant in the facts of the case.
s.3(2), (4) Explanation 1 - Grave injury to mental health -
Statutory presumption of - Held: Where any pregnancy is alleged
by the pregnant woman to have been caused by rape, the anguish
B caused by the same has to be presumed to constitute a grave ifijury
to the mental health of the pregnant woman - Once such a statutory
presumption is provided, the same comes within the compartment of
grave injury to mental health.
Women We(fare/Development - Termination of Pregnancy:
c Duty of High Court - Held: High Courts required to be more
sensitive while dealing with matters relating to termination of
pregnancy - Constitution of India - Art.226.
Duty of hospitals - Held: Element of time is extremely
significant in a case of pregnancy as every day matters - Therefore,
D hospitals should be absolutely careful and treating physicians should
be well advised to conduct themselves with accentuated sensitivity
so that the rights of a woman is not hindered - The fundamental
concept relating to bodily integrity, personal autonomy and
sovereignty over her body have to be given requisite respect while
E taking the decision.
Remedy - Public law remedy - Grant of compensation under.
for negligence and suffering of a person for which State authorities
were responsible - Difference from compensation u/s.357A,
CrPC - Appellant, a mentally retarded rape victim, was denied
termination of pregnancy by government hospital - Held: Appellant
F
suffered grave injury to her mental health - The said injury is in
continuance - Despite the prompt attempt made by Supreme Court
to get her examined so that she need not undergo the anguish of
bearing a child because she is a victim of rape, it could not be so
done as the medical report states that termination of pregnancy at
G this stage was risky to the life of the victim - This situation could
have been avoided had the decision been taken at the appropriate
time by the government hospital at Patna - State authorities are
responsib/e for the negligence and the suffering of appellant -
Keeping in view the mental injury that the appellant had to suffer,
H she is entitled to be compensated under public law remedy.
MS. Z v. THE STATE OF BIHAR 215
Doctrines/Principles - Principle of State Interest - Non- A
applicability of - Held: The State contested the matter before the
High Court on the foundation of State interest - The principle of
State interest is not at all applicable to the present case.
Maxims - actus curiae neminem gravabit - Inapplicability of-
Appellant, a mentally retarded rape victim was denied termination B
of pregnancy by government hospital - State authorities held
responsible for negligence and, for the suffering of appellant -
Direction to State to pay Rs. 10 lakhs as compensation - Plea of
State that it had shown an affirmative attitude and if any delay has
been caused, it is because of the expression of the view by the High
Court for which the State cannot be found fault with and the said C
maxim protected the action of the State -Held: Despite its bro(Jd
connotation, the said maxim is not attracted to the obtaining factual
matrix inasmuch the compensation was granted because of the delay
caused by the authorities of govt. hospital.
Allowing the appeal, the Court D
HELD: 1.1 The Legislature intended to liberalize the
existing provisions relating to termination of pregnancy keeping
in view the danger to life or risk to physical or mental health of
the woman; on humanitarian grounds, such as when pregnancy
arises from a sex crime like rape or intercourse with a lunatic E
woman, and eugenic grounds where there is substantial risk that
the child, if born, would suffer from deformities and diseases.
[Para 18) [233-C-D]
1.2 Explanation 1 to sub-section (2) of Section 3 of the
Medical Termination of Pregnancy Act, 1971 postulates that F
where any pregnancy is alleged by the pregnant woman to have
been .cause.d by rape, the anguish caused by the same has to be
presumed to constitute a grave injury to the mental health of the
pregnant woman. Once such a statutory presumption is provided,
the same comes within the compartment of grave injury to mental G
health. Sub-Section (4) of Section 3 requires consent of the
guardian of a minor, or a major who is mentally ill person. [Para
21) [235-B-C]
2.1 In the factual score of the present case, the approach
of the High Court is completely erroneous. The report submitted H
216 SUPREME COURT REPORTS [2017) 8 S.C.R.
A by the IGIMS stated that termination of pregnancy may need
major surgical procedure along with subsequent consequences
such as bleeding, sepsis and anesthesia hazards, but there was
no opinion that the termination could not be carried out and it
was risky to the life of the appellant. There should have been a
query in this regard by the High Court which it did not do. That
8
apart, the report shows that the appellant, who was a writ petitioner
before the High Court, was suffering from mild mental retardation
and she was on medications and her condition was stable and she
would require long term psychiatry treatment but she was in a
position to express her consent. She did not desire to bear a
C child. The Medical Board had not stated that she was suffering
from any kind of mental illness. The appellant was thirty-five year
old at that time. She was a major. She was able to allege that she
had been raped and that she wanted to terminate her pregnancy.
Under the statutory framework, she was entitled to give her
D consent for termination of pregnancy. She had gone from a women
rehabilitation centre, gave her consent for termination of
pregnancy and had alleged about rape committed on her, but the
termination was not carried out. In such a circumstance, there is
no fathomable reason on the part of the government hospital not
to have proceeded for termination of the pregnancy because there
E was nothing on record to show that there was any danger to the
life of the victim. Thus, there has been negligence in carrying
out the statutory duty, as a result of which, the appellant has been
constrained to suffer grave mental injury. [Paras 23, 26 and 39)
(236-B-D; 238-E-F; 244-A-C]
F Suchita Srivastava and another v. Chandigarh
. Administration (2009) 9 SCC 1 - held inapplicable.
2.2 It is noted now that as per the report of the Medical
Board at AIIMS which was constituted as per the direction of
this Court on 3rd May, 2017 termination of pregnancy could have
G been risky to the life of the appellant. This situation could have
been avoided had the decision been taken at the appropriate time
by the government hospital at Patna. For the negligence and
carelessness of the hospital, the appellant has been constrained
to suffer. The mental torture on certain occasions has more
grievous impact than the physical torture. There was no
H
MS. Z v. THE STATE OF BIHAR 217
justification to push back her rights and throw her into darkness A
to corrode her self-respect and individual concern. She had
decided to exercise her statutory right, being a victim of rape,
not to bear the child and more so, when there is possibility of the
child likely to suffer from HIV+ve, the authorities of the State
should have been more equipped to assist the appellant instead B
of delaying the process. That apart, the.State in a way contested
the matter before the High Court on the foundation of State
interest. The principle of State interest is not at all applicable to
the present case. Therefore, the concept of grant of compensation
under public law remedy emerges. [Paras 43, 44 )[245-E, G-H;
246-A) C
3.1 In the instant case, it is luminescent that the appellant
has suffered grave injury to her mental health. The said injury is
in continuance. It is a sad thing that despite the prompt attempt
made by this Court to get her examined so that she need not
undergo the anguish of bearing a child because she is a victim of D
rape, it could not be so done as the medical report clearly stated
that there was risk to the life of the victim. The continuance of
the injury creates a dent in the mind and the appellant is compelled
to suffer the same. One may have courage or cultivate courage
to face a situation, but the shock of rape is bound to chain and
enslave her with the trauma she has faced and cataclysm that she E
has to go through. Her condition cannot be reversed. The situation
as is unredeemable. But a pregnant one, she has to be
compensated so that she lives her life with dignity and the
authorities of the State who were negligent would understand
that truancy has no space in a situation of the present kind. What F
is needed is promptitude. [Para 53] [250-B-DJ
3.2 This Court had earlier directed that appellant should
be paid compensation under the Victims Compensation Scheme
as framed under Section 357-A of the Code of Criminal Procedure.
She has been paid Rs. 3,00,000/- as she has been a victim of G
rape. However, grant of com.pensation for the negligence and
the suffering for which the authorities of the State are responsible
is different as it comes within the public law remedy and it has a
different compartment. Keeping in view the mental injury that
the victim has to suffer, the appellant should get a sum of
H
218 SUPREME COURT REPORTS [2017] 8 S.C.R.
A Rs. 10,00,000/- (Rupees ten lakhs only) as compensation from
the State and the same shall be kept in a fixed deposit in her
name so that she may enjoy the interest. It is so directed as it is
wanted that money to be properly kept and appropriately utilized.
It may also be required for child's future. That apart, it is directed,
B that the child to be born, shall be given proper treatment and
nutrition by the State and if any medical aid is necessary, it shall
also be provided. If there will be any future grievance, liberty is
granted to the appellant to approach the High Court under Article
226 of the Constitution of India after the birth of the child.
(Para 54) (250-E-Hl
c 4. It is further necessary to state that the Single Judge
should have been more alive to the provisions of the Act and the
necessity of consent only of the appellant in the facts of the case.
There was no reason whatsoever to implead the husband and
father of the appellant, as it is beyond an iota of doubt that the
D appellant was a destitute, a victim of rape and further she was
staying in a shelter home. Calling for a medical report was
justified but to delay it further was not at all warranted. It needs
to be stated that the High Courts are required to be more
sensitive while dealing with matters of the present nature. (Para
E 551 (251-A-BJ
5. According to the State, it should not be made liable
because of the fault of the Court. The principle of actus curiae
11eminem gravabit basically means an act of the court shall
prejudice no man. Though such a principle has been advanced
yet the same is not applicable to the facts of the case at hand.
F The aforesaid principle despite its broad connotation is not
attracted to the obtaining factual matrix inasmuch compensation
is granted because of the delay caused by the hospital authorities.
(Para 561 [251-C-D, GI
6. India has ratified the Convention on the Elimination of
G All Forms of Discrimination Against Women (CEDAW) in 1993
and is under an international obligation to ensure that the right
of a woman in her reproductive choices is protected. Articles 11
of the said Convention provides that all State parties shall ensure
the right to protection of health and to safety in working conditions,
H including the safeguarding of the function of reproduction. Article
MS. Z v. THE STATE OF BIHAR 219
12 of the Convention stipulates that State parties shall take all A
appropriate measures to eliminate discrimination against women
in the field of health care in order to ensure, on a basis of equality
of men and women, accesses to health care services, including
those related to family planning. [Para 571 [251-G-H; 252-A-BI
7. The legislative intention of 1971 Act prominently B
emphasises on personal autonomy of a pregnant woman to
terminate the pregnancy in terms of Section 3 of the Act. Recently,
Parliament has passed the Mental Healthcare Act, 2017 which
has received the assent of the President on 7th April, 2017. The
said Act shall come into force on the date of notification in the
official gazette by the Central Government or on the date of C
completion of the period of nine months from 7th April, 2017. The
same is referred only to highlight the legislative concern in this
regard. It has to be borne in mind that element of time is
extremely significant in a case of pregnancy as every day matters
and, therefore, the hospitals should be absolutely careful and D
treating physicians should be well advised to conduct themselves
with accentuated sensitivity so that the rights of a woman is not
hindered. The fundamental concept relating to bodily integrity,
personal autonomy and sovereignty over her body have to be
given requisite respect while taking the decision and the concept
of consent by a guardian in the case of major should not be over E
emphasized. [Para 581 [252-C-FI
8. In view of the aforesaid analysis, the appeal is allowed
and the order passed by the High Court is set aside except for
the direction pertaining to investigation carried out on the basis
of the FIR lodged by the appellant. [Para 59] [252-F-G] F
Nilabati Behera v. State of Orissa (1993) 2 SCC
746:[1993] 2 SCR 581; Sube Singh v. State of Haryana
(2006) 3 SCC 178: [20061 2 SCR 67; Hardeep Singh
v. State of MP (2012) 1 SCC 748; Chairman, Railway
Board and others v. Chandrima Das (Mrs.) and others G
(2000) 2 SCC 465: [2000] 1 SCR 480; Rini Johar and
another v. State of Madhya Pradesh and others (2016)
11 SCC 703; D.K. Basu v. State of West Bengal (1997)
1 SCC 416:[19961 10 Suppl. SCR 284 - relied on.
H
220 SUPREME COURT REPORTS [2017] 8 S.C.R.
A Meera Santosh Pal v. Union of India AIR 2017 SC
461:(2017) 1 SCR 261; Xv. Union of India and others
AIR 2017 SC 1055; Xv. Union of India and others
AIR 2016 SC 3525; Sheetal Shankar Salvi and another
v. Union of India 2017(5) SCALE 428; Ms. Eera Thr.
Dr. Manjula Krippendorf v. State (Govt. of NCT of
8
Delhi) and another 2017 (8) SCALE 112; Mehmood
Nayyar Azam v. State of Chhattisgarh (2012) 8 SCC 1:
[2012) 8 SCR 651 - referred to.
Case Law Reference
c [2017) 1 SCR 261 referred to Para 9
AIR 2017 SC 1055 referred to Para9
AIR 2016 SC 3525 referred to Para 9
2017(5) SCALE 428 referred to Para9
(2009) 9 sec 1 held inapplicable Para 9
D [1993) 2 SCR 581 relied on Para 15
[1996) 10 Suppl. SCR 284 relied on Para 15
[2000) 1 SCR 480 relied on Para 15
2017 (8) SCALE 112 referred to Para 38
[2012) 8 SCR 651 referred to Para 44
E
(20061 2 SCR 67 relied on Para 47
(2012) 1 sec 748 relied on Para 48
(2016) 11 sec 103 relied on Para 51
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 10463
F of2017.
From the Judgment and Order dated 26.04.2017 of the High Court
of Judicature at Patna in Civil Writ Jurisdiction Case No. 5286 of2017. ·
Ms. Vrinda Grover,Archit Rajpal, Ms.Arnita V. Joseph, T. Mahipal,
G Advs. for the Appellant.
Ms. Abba R. Sharma, D. S. Parmar, Ms. Sujeeta Srivastava, Vibhu
Shankar Mishra, G S. Makker, Advs. for the Respondents.
The Judgment of the Court was delivered by
DIPAK MISRA, J. I. An interlocutory application being I.A.
H No. 64980 of 2017 has been filed seeking certain directions. Having
MS. Z v. THE STATE OF BIHAR [DIPAK MISRA, J.] 221
heard learned counsel for the parties, it is directed that name of the A
appellant in the cause title be substituted with Ms. Z so that her identity
is not revealed; the Registry of the Court shall substitute the name of the
appellant with Ms. Zin all records, including on the official website of
this Court, and the Registry of the High Court of Patna shall substitute
the name of the appellant with Ms.Zin all records, including the official B
website of the High Court. Leave is granted to the appellant to seek
substitution of her name with Ms. Z on all search engines such as
google.com, legal websites such as indiakanoon.org as well as legal
journals. Interlocutory application is accordingly allowed .
•
2. The factual score that has been depicted in the instant appeal
is reflective of a retardant attitude and laxness to the application of the C
provisions oflaw at the appropriate time by the authorities that can cause
a disastrous affect on the mind of a hapless victim. And the victim here
is a destitute woman, who was brought to a shelter home from the
footpath, as she was not wanted by her husband and her family, living in
abject poverty and being scared of social stigma could not afford her a D
home. Sans a sense of belonging, she was brought to 'Shanti Kutir', a
shelter home, run by an organization named Youth Mobilization for
National Advancement (YMNA) under the Mukhyamantri Bhikshavriti
Nivaran Yojna a scheme floated by the Government ofBihar for destitute
women. The woman, a destitute, was found to be pregnant by the
functionaries of the home and further being aware of the fact that she E
had been condemned to that condition because of rape 1:ommitted on
her, the competent authority of the home took her to the hospital for
termination of pregnancy with her consent. Though the steps taken by
the shelter home were prompt, yet delay was caused by the authorities
of the hospital. The delay in such a situation has the seed that can cause F
·depression to a woman, who is already in despair. And this despair has
the potentiality to drive one on the path of complete distress. In such a
situation, the victim in a state of anguish may even think of surrendering
to death or live with a traumatic experience which can be compared to
have a life that has been fragmented at the cellular level. It is because
the duty cast on the authorities under the Medical Termination of G
Pregnancy Act, 1971 (for brevity, 'the Act') is not dutifully performed,
and the failure has ultimately given rise to a catastrophe; a prolonged
torment. That is the sad narrative of the victim appellant.
3. The appellant, a thirty-five year old woman, was living on the
footpath in Phulwarisharif, Patna. On 25th January, 2017, she was brought H
222 SUPREME COURT REPORTS [2017] 8 S.C.R.
A to Shanti Kutir. The medical test done by Shanti Kutir showed that she
was pregnant. On 211ct February, 2017, she was taken to Patna Medical
College Hospital, Patna (PMCH), for medical examination. On 81h
February, 2017, an ultrasound test was done at PMCH, and it was found
that she was 13 weeks and 6 days pregnant. On 41h March, 2017, she
expressed her desire to terminate the pregnancy and, accordingly, she
B
was taken to PMCH for further medical examination. At that juncture,
the appellant revealed that she had been raped and, therefore, the
pregnancy should be terminated. On l 4'h March, 2017, she was taken
to PMCH for termination and her father and brother were called and
made to sign a consent form, which they duly signed. However, the
C hospital authorities did not proceed with the termination of the pregnancy.
It is worthy to mention here that on ]81h March, 2017, an F.I.R. under
Section 376 of the Indian Penal Code (!PC) was registered with Mahila
Police Station, Patna as Case No.13 of2017. The Home Superintendent,
Shanti Kutir wrote to the Superintendent of Patna Medical College and
Hospital, Patna, stating, inter alia, that the pregnancy is more than 17
0
weeks and a divorce petition had been filed by the husband, and the
father and the brother of the appellant expressed their inability to take
her with them because of social and financial constraints. On 3'd April,
2017, she was again taken to PMCH, but the termination was not carried
out and, by that time, her pregnancy was 20 weeks old. As the factual
E narration would reveal, the appellant was found to be HIV+ve.
4. As the pregnancy was not carried out, the appellant approached
the High Court in C.W.J.C. No. 5286 of2017 with the prayer to ascertain
the physical condition including the stage of pregnancy and to direct for
termination of pregnancy as she had been sexually assaulted and further
F she was HIV+ve. The High Court, on IO'h April, 2017, permitted the
counsel for the victim to implead the husband and her father and the
Director oflndira Gandhi Institute of Medical Sciences, Patna (IGIMS).
Thereafter, the learned single Judge directed for constitution of a Medical
Board at IGIMS, Patna, to assess the physical and mental condition of
the writ petitioner therein and the fetus. On that day, the High Court also
G directed the Home Superintendent, Shanti Kutir, a Women Rehabilitation
Centre, to file a counter affidavit. Similar direction was issued to the
State of Bihar and Superintendent of PMCH. A further direction was
given by the High Court to the Senior Superintendent of Police, Patna, to
submit an interim report with regard to the progress of investigation in
H Mahila P.S. Case No.13 of2017.
MS. Z v. THE STATE OF BIHAR [DIPAK MISRA, J.] 223
5. It is apt to note here that the Director, IGIMS, Patna was A
directed to constitute a Multi Disciplinary Medical Board consisting of
Heads of Department of Gynecology, Neurology and Forensic Medicine.
Liberty was granted to the Director, IGIMS to nominate one or more
doctors as members of the Multi Disciplinary Medical Board to examine
the victim with regard to physical and mental state and the condition of B
the fetus. The writ petitioner was directed to make herself present
beforethe Director, IGIMS, on !Ith April, 2017at10.30 a.m. The IGIMS
examined the victim and submitted a report in a sealed cover.
6. As the factual matrix would further uncurtain, on l 81hApril,
2017, the High Court took note of the fact that the name of the appellant's C
husband had been wrongly mentioned and a direction was issued to
make dasti service on the husband and the father through the Officer
In-charge of the local police station and the matter was fixed for 20'h
. April, 2017. On 20'h April, 2017, the matter could not be taken up and
stood adjourned to 21 ''April, 2017. On the adjourned date, the father of
the appellant prayed for time to file counter affidavit. The High Court D
expressed its displeasure that despite the specific direction, the Senior
Superintendent of Police, Patna, had not filed any counter affidavit,
although a submission was made by the learned Additional Advocate
General that he had been intimated by the Senior Superintendent of Police
that the investigation was in progress and likely to be over within six
months. Thereafter, the High Court proceeded to determine the issue E
whether the victim, who is HIV+ve and is carrying a pregnancy of 24
weeks could be allowed to have medical termination of pregnancy under
the Act. The stand of the Government before the High Court was that.
the victim was being provided with all facilities to survive in rehabilitation
centre and the pregnancy could not be terminated because the identity F
of the father of the victim was not established and he had refused to
swear an affidavit in this regard and subsequently escaped from the
scene. The stand of the father of the victim before the High Court was
that he did not have any objection for getting the pregnancy terminated.
The husband, the respondent No. 8 before the High Court, admitted that
he had entered into wedlock with the victim and in the said wedlock two G
children were born, but the victim had deserted him in March, 2007, and
the said circumstances led him to file Matrimonial Suit No. 984 of2015
before the.Principal Judge, Family Court, Patna, seeking dissolution of
marriage.
H
224 SUPREME COURT REPORTS [2017] 8 S.C.R.
A 7. The High Court perused the report submitted by IGIMS, which
suggested that the pregnancy was 20 to 24 weeks old and the terminati,on
of pregnancy would require major surgical procedure along with the
subsequent consequences such as bleeding, sepsis and anesthesia hazards.
The report that was filed by IGIMS, which has been referred to by the
High Court, needs to be reproduced:
B
Issues Opinion
I. Examination report of the Physical Examination: Pulse -
patient (petitioner) with regard 100/min regular, BP-114/80 mmHg,
to her physical and mental Pallor-Mild, lcerus-NIL, edema-Nil,
c stage (Physical Medical
examination of all system will
Cyanosis & clubbing-Nil, JVP -
normal, Chest - B/L clear no added
be desirable: sound; CVS-S 1 & S2 - Normal, no
Respiratory, CVS, Neurology added sound; PIA exam- fundal height
etc. corresponds to 22-24 wk pregnancy;
CNS - Higher mental function intact,
no focal neurological deficit.
D Mentally alert, well oriented with
time, place & person (Annexure I)
2. Stage of Pregnancy. 2•u trimester of approximately 23 wks
(as per l '' USG report of whole
abdomen on 08.02.2017 of PMCH.
And IGIMS, USG on dated
11.04.2017 shows 21 wks
E fetus .....(Annexure-II)
According to recommendations 1'' i.e.,
earliest USG is to be used for
Gestational age calculation.
3. Overall condition of foetus Normal single alive intra-uterine
F foetus (As per Physical examination
and USG report)
4. How far the termination of Termination of Pregnancy at this stage
pregnancy will be detrimental sometimes may need major surgical
to the petitioner. procedure along with the subsequent
consequences such as Bleeding, Sepsis
and Anesthesia hazards.
G 5. How far it will be The patient can continue pregnancy
detrimental, if the petitioner is according to NACO guidelines. Still
allowed to complete full term there is likelihood that fetus may be
of pregnancy. HIV+ve. But definitive diagnosis can
only be given when the child is 18
months old.
H
\
MS. 'z v. THE STA\E OF BIHAR [DIPAK MISRA, J)] 225
\
\
A
6. How far it will be As per the clinical assessment &
detrimental to the petitioner documental)' evidence, the patient is
and foetus, particularly in view diagnosed to have Psychiatry illness,
of the fuct that she is mentally provisionally Schizophrenia with Mild
abraised and HIV+VE. Mental Retardation. She is currently
on medications and behaviourally
stable and will require long term B
psychiatry treatment.
7. Investigation reports Reports which are made available
before· the Board Members are .....
Annexure-III.
Some investigation reports which are C
not available at IGIMS like CD4 +T ·
Lymphocyte count, Serum HIV RNA
level (Viral load) and Triple Marker
Maternal Blood test advised by
concerned members are still awaited,
after which progression of HIV and
through maiker congenital D
abnormality of foetus can be assessed.
8. The learned Single Judge, after referring to the provisions of
the Act, observed thus:
E
"In the present case, the medical report does not suggest that ~··
the foetus is suffering from any abnormality. It further does not '\
suggest that the foetus has already been infected with HlV+ve. \.
It only predicts that any definite opinion can be given only when
the child attains the age of 18 months. The Medical report further
does not suggest that ifthe victim is allowed to cany the pregnancy F
to its full course, then she will suffer any risk of life or !,'Tave
injury to her physical or mental health. Explanation 1 of Sub-
Section 2 of Section 3, provides that such pregnancy which is
alleged to have been caused by rape shall be presumed to
constitute grave injury to the mental health of the pregnant
woman. In the present case, the victim has alleged that she had G
been ravished, but her conduct of not disclosing the incident of
rape for more than 13 weeks and deciding not to get the pregnancy
terminated for more than 20 weeks, as the writ application has
been filed after 20 weeks of pregnancy i.e. on 07.04.2017, prima
facie, does not suggest that such alleged conceivement has really H
226 SUPREME COURT REPORTS [2017] 8 S.C.R.
A caused grave injury to the mental health of the victim. Moreover,
the termination, as contemplated under Section 3 of the Act,
1971, is only permissible up to 20 weeks of pregnancy. Definitely
the effort for termination was made on behalf of the victim in
the 17'h week of pregnancy, but the present writ application has
been filed before this Court after 20 weeks of her pregnancy."
8
9. After so stating, the High Court adverted to Sections 3 to S of
the Act and opined that the provisions are not applicable to the writ
petitioner. The learned Single Judge also referred to Section 10 of the
Human Immunodeficiency Virus and AIDS (Prevention and Control)
Act, 2017 and distinguished the decisions rendered in Meera Santosh
C Pal v. Union of lndia 1, X v. Union of India and otliers1 and X v.
Union of India and others3. He placed reliance on Sheetal Shankar
Salvi and another v. Union of India', wherein this Court has declined
termination of 20 weeks of pregnancy. The High Court, thereafter,
adverted to the statement of law in Suchita Srivastava and another v.
D Chandigarh Administration5 and reproduced certain paragraphs and
took note of the concept that in the case of a pregnant woman and
'compelling State interest' and further adverted to the doctrine of'parens
patriae' where in certain situations the State must make decisions in
order to protect the interest of those persons who are unable to take
care of themselves. Thereafter, the learned single Judge adverted to the
E two standards, namely, 'best interests' test and 'substituted judgment'
test as laid down in Suchita Srivastava (supra). The High Court also
dwelled upon the role of the court that it must undertake a careful inquiry
of the medical opinion on the feasibility of the pregnancy as well as
social circumstances faced by the victim.
F 10. After so stating, the learned Single Judge delved into the factual
score projected in the writ petition and opined thus:
"In the present case also, in the 'best interest' of the victim and
the foetus, this Court finds no reason to exercise the jurisdiction
under Article 226 of the Constitution of India for directing the
G pregnancy to be terminated in its 23-24 weeks, particularly such
termination of preb'llancy, as per the Medical Board report would
I AIR 2017 SC 461
2 AIR2017 SC 1055
'AIR 2016 SC 3525
4
2017 (5) SCALE 428
H '(2009) 9 sec 1
MS. Z v. THE STATE OF BIHAR [DIPAK MISRA, J.] 227
be hazardous. to the life of the victim. However, keeping in view A
the fact that the victim was leading a life of destitute and she has
been almost deserted by her husband, her father, her brother
and her sister, as none of them in their counter affidavit have
stated that they are ready to take her to their house, this Court
feels that she will be safe if she is allowed to remain in
B
rehabilitation centre, Shanti Kutir so long she desires.
Mr. Kaushal Kumar Jha, learned AAG-8 submits that the
rehabilitation center is run by the Government and the Government
is ready to provide all medical facilities, as well as amenities of
day to day life to the victim.
c
In the circumstances, it is expected from the Superintendent,
PMCH to get the victim medically examined every month or so
and provide all medicines or other medical facilities required for
carrying the pregnancy to its full term and bringing up the child
after its birth, till the child attains the age of five years. The
Superintendent, PMCH would ensure to provide the victim with D
necessary medical cover in light of the direction made above.
This Court is hopeful that the NGO will take care of the
victim and provide all the facilities for the post-natal care.
In the circumstances, in the interest of justice and in the E
interest of victim and foetus/prospective child, this Court is not
inclined to permit the medical terminaton of pregnancy of the
victim."
11. After so holding, the learned Single Judge issued certain
directions, which are to the following effect: F
(i) Respondent No.4 will get the bank account of the victim
opened within a period of one week, if she does not have one.
(ii) Respondent Nos.7 and 8, the father and the husband of the
victim will deposit Rs.1,000 and Rs.1,500/-, respectively, p.er
month in the account of the victim from May, 2017. G
(iii) Ifrespondent Nos.7 and 8 make default in payment on three
consecutive occasions, of the installment of the aforesaid amount,
then any of the concerned parties would be at liberty to file an
application before this Court and respondent Nos. 7 and 8 will be
answerable to this Court, in this regard. H
228 SUPREME COURT REPORTS [2017] 8 S.C.R.
A (iv) Respondent Nos.7 and 8 will provide their mobile number to
the respondent No.4 and shall visit the victim every month.
(v) Respondent No.4 shall allow the relatives and husband of
the victim to meet her.
(vi) One copy of the report of the Medical Board will be kept
B with the records of the present case and one copy of the
conclusive medical report will be transmitted to respondent No.4
by the Director of IGIMS, Patna.
(vii) The Director, IGIMS, Patna will transmit the awaited medical
report of the victim, as mentioned in Clause-7 of the report of
c the Medical Board, to respondent No.4."
12. The High Court decided the matter on 26th April, 2017. When
the said order was challenged, the present appeal was taken up on 3ru
May, 2017. The learned counsel for the appellant referred to the facts
as asserted in the special leave petition which is evincible from the order
D of the High Court. Though the Union of India is not a party, Mr. P.S.
Narasirnha and Mr. Tushar Mehta, learned Additional Solicitors General
were asked as to whether arrangements could be made for the appellant
to come to Delhi to be examined by a Medical Board at All India Institute
of Medical Sciences (AIIMS), New Delhi. Learned counsel for the
E appellant, after obtaining instructions, stated that she is inclined to be
examined by the Medical Board at AIIMS. Taking note of the same, the
Court directed as follows:
"Mr. P.S. Narasirnha and Mr. Tushar Mehta have submitted that
a member from the Non Governmental Organization, namely,
F Koshish-TISS, the respondent No.5 hereing, should accompany
the petitioner to Delhi. As far as the travel is concerned, Mr.
Narasirnha and Mr. Mehta spoke in unequivocal voice that the
arrangements shall be made for the petitioner and the
accompanying member so that they can come to Delhi where
further arrangements shall be made for their stay and the
G petitioner can be examined by the Medical Board at AIIMS latest
by 6'h May, 2017.
The report of the Medical Board shall be produced before
this Court and we would also request Mr. Narasirnha and Mr.
Mehta to assist the Court on the issue and also to have some
H discussion with the doctors, for we are concerned with saving a
MS. Z v. THE STATE OF BIHAR [DIPAK MISRA, J.] 229
life of a destitute woman. As we are inclined to think that a A
woman, who has already become a destitute being sexually
assaulted and suffering from a serious medical ailment, not to go
through further sufferings. The quientessential purpose of life,
be it a man or a woman, is the dignity oflife and all efforts are to
be made to sustain it."
B
13. In pursuance of the order passed by this Court, the Medical
.Board at AIIMS examined the appellant. The opinion of the Medical
Board was that the procedure involved in termination of the pregnancy
is risky to the life of the appellant and the fetus in the womb. It has
suggested that she should be advised to continue HAART therapy and
routine antenatal care to reduce the risk of HIV transmission to the C
fetus. In view of the said report, the Court on 91h May, 2017, directed as
follows:
"In view of the aforesaid opinion, it is the accepted position at
the Bar that there cannot be termination of pregnancy. Learned
counsel for the petitioner would submit that the petitioner along D
with the companion be sent back to Patna and for the said purpose
appropriate arrangements be made by the Union of India to which
Mr. Tushar Mehta, learned Additional Solicitor General concedes.
We appreciate the stand taken by the Union oflndia in this regard. \
Learned counsel for the petitioner submitted that the doctors E
at AIIMS may give the appropriate treatment graph for the
petitioner so that she can survive the health hazard that she is in.
Mr. Tushar Mehta, learnedAdditional Solicitor General submitted
that she will be given the treatment graph by 10.05.2017.
The controversy does not end here. Learned counsel for F
the petitioner would submit that because of the delay caused,
she is compelled to undergo the existing miserable situation and,
therefore, she is entitled to get compensation and that apart, she
is also entitled to get compensation under the Victim
Compensation Scheme as framed under Section 357-A of the G
Code of Criminal Procedure by the State of Bihar.
\
Apart from the above submission, we are obligated to direct the
State ofBihar to provide all the medical facilities to the petitioner
as per the treatment graph given by the doctors who are going to ,
examine the petitioner at AIIMS through the Indira Gandhi H
230 SUPREME COURT REPORTS [2017] 8 S.C.R.
A Institute of Medical Sciences at Patna. The Indira Gandhi
Institute of Medical Sciences shall work in coordination with
AIIMS, New Delhi so that the health condition of the petitioner
is not further jeopardized.
Learned counsel for the petitioner is granted liberty to file an
B additional affidavit with regard to the facet of compensation within
six weeks hence. The State of Bihar, who is represented by Ms.
Abha R. Sharma, learned counsel shall file a reply to the special
leave petition as well as to the additional affidavit within four
weeks therefrom.
c We have stated about the grant of compensation hereinbefore.
The one facet of granting compensation pertains to negligence
and delay which come within the domain of public law remedy.
The other aspect of the compensation comes under the scheme
dated 24.3.2014 framed under Section 357-A of the Code of
Criminal Procedure. Needless to say, the petitioner is eligible to
D get the compensation under the said Scheme and, therefore, the
petitioner shall be paid a sum ofRs.3,00,000/-(Rupees three lac
only) by the State of Bihar as she has been a victim of rape.
Needless to say, we have determined the compensation regard
being had to clause 4 of the Scheme. The said amount shall be
E paid to her within four weeks hence and compliance report thereof
shall be filed before the Registry of this Court. As far as the
other aspect of compensation is concerned, the said aspect shall
be considered on 9.8.2017."
14. We have narrated the facts in extenso so that the controversy
F can be appreciated in proper perspective and further the laxity on the
part of the authorities and also the approach of the High Court can be
appositely deliberated upon. It is submitted by Ms. Vrinda Grover, learned
counsel for the appellant that she is entitled to get compensation from
the State under the public law remedy as the authorities under the State
have not acted with quite promptitude in terminating the pregnancy and
G procrastinated the matter, as a consequence of which, the appellant is
compelled to lead a life of terrible agony and anguish, and constant state
of uncertainty. It is her submission that as the appellant was a destitute
staying in a shelter home and neither the father or her siblings had shown
any concern because of social stigma and their own impecuniosity and
H the husband had abandoned her to her fate and preferred a divorce
MS. z v. THE STATE or BIHAR [DIPAK MISRA, J.] 231
petition, there was no justification to obtain the consent of the father or A
the husband for termination of pregnancy. That apart, she contends that
the approach of the High Court is wholly fallacious since it seeds more
concerned with the future of the foetus but not the life of the victim. It is
canvassed by the learned counsel that the appellant was thirty-five years
old when she had gone to the hospital and expressed her willingness in B
no uncertain terms to terminate her pregnancy as she had been raped
and an F.l.R. has been lodged, it was the obligation of the competent
authorities ofthe PMCH to proceed with the termination and not to
cause delay which invited complications. According to her, when her
case fell squarely within the statutory framework, there was no reason
to show slackness. She also contends that the High Court has completely C
failed to appreciate the spirit of thy Act and has treated it as an adversarial
litigation and passed the order jVhich not only unsustainable in law but
also projects total lack of sensiti".ity.
15. Pyramiding the submission for grant of compensation from
the State, learned counsel would contend that when the appellant had D
gone to the PMCH, it was obligatory on the part of the authorities to
proceed with the termination and that apart, the State had, in a way,
contested the writ petition. Learned counsel would further propound
that the concept of 'compelling State interest' is not applicable to the
case at hand but the said concept was unnecessarily highlighted. She
would canvass that when the statutory function is not carried out and E
the fundamental choice which is available to the appellant in law is totaily
curtailed and sputtled, the victim is entitled for compensation, for the
entire action has caused her immense mental torture. She has drawn
our attention to the affidavit filed by the respondent-State, where the
State has taken a stand that the consent of the father and the husband F
was necessary, which was not the statutory warrant in the case of the
appellant. Structuring the submission pertaining to grant of compensation,
Ms. Grover would submit that her choice not to exercise her reproductive
rights in the factual matrix has been completely shattered in contravention
of the statutory provisions and the pronouncements of this Court as a
consequence of which she is being compelled to carry the pregnancy to G
its full term that has caused incalculable harm and irreversible injury
giving rise to emotional trauma. She would contend, with all the humility
at her command, that when there is violation of such right because of
the negligence of the State functionaries, the victim is entitled to get
compensation. To buttress the said submission, she has commended us. H
232 SUPREME COURT REPORTS [2017] 8 S.C.R.
A to the authorities in Nilabati Behera v. State of Orissa 6, D.K. Basu v.
State of West Benga/7 and Chairman, Railway Board and others v.
Chandrima Das (Mrs.) and others 8•
16. Ms. Abha R. Sharma, learned counsel appearing for the State
of Bihar, contends that the State has taken care of the appellant as
B directed by this Court and there has been no negligence on the part of
the authorities of the State and, therefore, the State cannot be held liable
to pay compensation. She has further urged that before the High Court,
the State has shown an affirmative attitude and if any delay has been
caused, it is because of the expression of the view by the High Court for
which the State cannot be found fault with. ln essence, her submission
c is that the maxim, actus curiae neminem gravabit, shall protect the
action of the State and it cannot be blamed for any procrastination.
17. To appreciate the rivalized submissions advanced at the Bar,
it is necessary to understand the background in which the Act was enacted
by the Parliament. The Statement of Objects and Reasons of the Act
D reads as follows:
"The provisions regarding the termination of pregnancy in the
Indian Penal Code which were enacted about a century ago
were drawn up in keeping with the then British Law on the subject.
Abortion was made a crime for which the mother as well as the
E abortionist could be punished except where it had to be induced
in order to save the life of the mother. It has been stated that
this very strict law has been observed in the breach in a very
large number of cases all over the country. Furthermore, most
of these mothers are married women, and are under no particular
F necessity to conceal their pregnancy.
2. In recent years, when health services have expanded and
hospitals are availed of to the fullest extent by all classes of
society, doctors have often been confronted with gravelYill or
dying pregnant women whose pregnant uterus have been
G tampered with a view to causing an abortion and consequently
suffered very severely.
3. There is thus avoidable wastage of the mother's health, strength
'(1993) 2 sec 746
7
(1997) l SCC416
H 'c2000) 2 sec 465
MS. Z v. THE STATE OF BIHAR [DIPAK MISRA, J.] 233
and, sometimes, life. The proposed measure which seeks to A
liberalise certain existing provisions relating to termination of
pregnancy has been conceived (1) as a health measure-wheri
there is danger to life or risk to pli'.ysical or mental health of the
woman; (2) on humanitarian grounds-such as when pregnancy
arises from a sex crime like rape or intercourse with a lunatic B
woman, etc.; and (3) eugenic grounds-where there is substantial
risk that the child, if born, would suffer from deformities and
diseases."
18. The aforesaid makes it absolutely clear that the Legislature
intended to liberalize the existing provisions relating to termination of C
pregnancy keeping in view the danger to life or risk to physical or mental
health of the woman; on humanitarian grounds, such as when pregnancy
arises from a sex crime like rape or intercourse with a lunatic woman,
and eugenic grounds where there is substantial risk that the child, if
born, would suffer from deformities and diseases.
19. Section 2, which is the dictionary clause, defines the term D
"guardian" to mean a person having the care of the person ofa minor or
a mentally ill person. "Mentally ill person" has been defined to mean a
person who is in need for treatment by reason of any mental disorder
other than mental retardation. The dictionary clause also defines the
terms 'minor' and 'registered medical practitioner'. E
20. Section 3 stipulates that when pregnancy may be terminated
by the registered medical practitioners. It reads as follows:
"Section 3. When pregnancies may be terminated by
registered medical practitioners.-(!) Notwithstanding
anything contained in the Indian Penal Code (45 of 1860), a F
registered medical practitioner shall not be guilty ofany offence
under that Code or under any other law for the time being in
force, if any pregnancy is terminated by him in accordance with
the provisions of this Act.
(2) Subject to the provisions of sub-section (4), a pregnancymay G
be terminated by a registered medical practitioner,-
(a) where the length of the pregnancy does not exceed twelve
weeks if such medical practitioner is, .or
(b) where the length of the pregnancy exceeds twelve weeks
H
234 SUPREME COURT REPORTS [2017] 8 S.C.R.
A but does not exceed twenty weeks, if not less than two
registered medical practitioners are,
of opinion. formed in good faith, that,-
(i) the continuance of the pregnancy would involve a risk to
the life of the pregnant woman or of grave injury to her physical
B or mental health; or
(ii) there is a substantial risk that if the child were born, it
would suffer from such physical or mental abnormalities as to
be seriously handicapped.
c Explanation ] .-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 ..
Explanation 2.-Where any pregnancy occurs as a result of
D failure of any device or method used by any married woman or
her husband for the purpose of limiting the number of children,
the anguish caused by such unwanted pregnancy may be
presumed to constitute a grave injury to the mental health of the
pregnant woman.
(3) In determining whether the continuance of pregnancy would
E
involve such risk of injury to the health as is mentioned in sub-
section (2), account may be taken to the pregnant woman's actual
or reasonable foreseeable environment.
(4) (a) No pregnancy of a woman, who has not attained the age
of eighteen years, or, who, having attained the age of eighteen
F
years, is a mentally ill person, shall be terminated except with
the consent in writing of her guardian.
(b) Save as otherwise provided in Clause (a), no pregnancy
shall be terminated except with the consent of the pregnant
woman."
G
[Emphasis added]
21. We have underlined the relevant part of the provision for the
purpose that where length of pregnancy exceeds 12 weeks but does not
exceed 20 weeks, two registered medical practitioners, after forming an
H opinion in good faith, that the continuance of the pregnancy would involve
MS. Z v. THE STATE OF BIHAR [DIPAK MISRA, J.] 235
a risk to the life of the pregnant woman or of grave injury to her physical A
or mental health and that there is substantial risk that if the child were
born, it would suffer from physical or mental abnormalities as to be
seriously handicapped, may terminate the pregnancy. Explanation 1 to
sub-section (2) of Section 3 to which our attention has been drawn
postulates that where any pregnancy is alleged by the pregnant woman B
to have been caused by rape, the anguish caused by the same has to be
presumed to constitute a grave injury to the mental health of the pregnant
woman. Once such a statutory presumption is provided, the same comes
within the compartment of grave injury to mental health. Sub-Section
(4) of Section 3 requires consent of the guardian ofa minor, or a major
who is mentally ill person. The opinion to be formed by the medical C
practitioners is to be in good faith.
22. In the instant case, the 1,>ravamen of the submission of the
learned counsel for the appellant is that negligence and delay have been
caused by the authorities of the State. Be it noted, learned counsel for
the appellant has filed a chart giving various dates to highlight the D
chronology of events. On a perusal of the same, it is demonstrable that
after the appellant was brought to Shanti Kutir, it was noticed that she
was pregnant. She was taken to PMCH. At that time, she was 13
weeks and 6 days pregnant. In the midst of 181h week, she expressed
her desire to terminate her pregnancy and that was communicated by
the Shanti Kutir to the hospital and, thereafter, she was taken to PMCH, E
wh"._re she made an allegation that she had been raped and expressed
her desire to terminate her pregnancy. Though she was taken to the
hospital for termination of pregnancy, yet the hospital authorities instead
of proceeding with the termination, called the father of the appellant to
sign the consent form. According to the learned counsel for the appellant, F
while she had gone to the government hospital and clearly stated that
she had been raped and further she was taken by the persons from the
Shanti Kutir, which is a Women Rehabilitation Centre, and further there
was no material that she was suffering from any mental illness, it was
obligatory on the part of the hospital to terminate the pregnancy. Had
that been done at the right time, the grave mental torture that she has G
been going through could have been avoided. Learned counsel also
criticized the approach of the High Court in not dealing with the matter
with required amount of sensitivity and not adhering to the statutory
provision that when there is an allegation of rape, the pregnancy can be
terminated. The High Court directed for a Medical Board to be H
236 SUPREME COURT REPORTS [2017] 8 S.C.R.
A constituted and after receipt of the report of the Medical Board some
time was consumed and, thereafter, also the High Court required the
father of the appellant to file an affidavit giving his consent.
23. We have already anlaysed in detail the factual score and the
approach of the High Court. We do not have the slightest hesitation in
B saying that the approach of the High Court is completely erroneous. The
report submitted by the IGIMS stated that termination of pregnancy
may need major surgical procedure along with subsequent consequences
such as bleeding, sepsis and anesthesia hazards, but there was no opinion
that the termination could not be carried out and it was risky to the life of
the appellant. There should have been a query in this regard by the High
C Court which it did not do. That apart, the report shows that the appellant,
who was a writ petitioner before the High Court, was suffering from
mild mental retardation and she was on medications and her condition
was stable and she would require long term psychiatry treatment. The
Medical Board has not stated that she was suffering from any kind of
D mental illness. The appellant was thirty-five year old at that time. She
was a major. She was able to allege that she had been raped and that
she wanted to terminate her pregnancy. PMCH, as we find, is definitely
a place where pregnancy can be terminated. For the said purpose, we
may usefully reproduce Section 4 of the Act:
E "Section 4. - Place where pregnancy may be terminated.-
No termination of pregnancy shall be made in accordance with
this Act at any place other than,-
(a) a hospital established or maintained by Government, or
(b) a place for the time being approved for the purpose of this
F Act by Government or a District Level Committee constituted
by that Government with the Chief Medical Officer or District
Health Officer as the Chairperson of the said Committee.
Provided that the District Level Committee shall consist of not
less than three and not more than five members including the
G Chairperson, as the Government may specify from time to
time."
24. The Medical Termination of Pregnancy Regulations, 2003 (for
short, 'the Regulations') deals with various aspects. Reb>ulation 3 provides
for form of certifying opinion or opinions. It stipulates that where one
H registered medical practitioner forms or not less than two registered
MS. Z v. THE STATE OF BIHAR [DIPAK MISRA, J.] 237
medical practitioners form such opinion as is referred to in sub-section A
(2) of Section 3 or 5, he or she shall certify such opinion in Form I. It
further provides that every registered medical practitioner who terrninat.es
any pregnancy shall within three hours from the termination of the
pregnancy certify such termination in Form I. Regulation 4 deals with
custody of forms. Sub-Regulation (1) of Regulation 4 provides that the
B
consent given by a pregnant woman for the termination of her pregnancy,
together with the certified opinion recorded under Section 3 or Section
5, as the case may be and the intimation of termination of pregnancy
shall be placed in an envelope which shall be sealed by the registered
medical practitioner or practitioners by whom such termination of
pregnancy was performed and until that envelope is sent to the head of C
the hospital or owner of the approved place or the Chief Medical Officer
of the State, it shall be kept in the safe custody of the concerned registered
medical practitioner or practitioners, as the case may be. Be it noted
that Section 5 is an exception to Sections 3 and 4, for it provides that
Sections 3 and 4 would not apply to certain circumstances as enumerated D
in Section 5. In the present case, we are concerned with Regulation 3
only.
25. The Form No. I has been provided under Regulation 3 and
that covers sub-section (2) of Section 3 and Section 5. The relevant
part of the said Form is reproduced below:
E
"*I/We hereby give intimation that *I/We terminated the
pregnancy of the woman referred to above who bears the serial
No ............... in the Admission Register of the hospital/
approved place. ,
Place ...... Signature of the Registered
F
Medical Practitioner
Date ....... Signature of the Registered
Medical Practitioner
Strike out whichever is not applicable.
**of the reasons specified items (i) to (v) write the one which is G·
appropriate:-
(i) in order to save the life of the pregnant woman,
(ii) in order to prevent grave injury to the physical and mental
health of the pregnant woman,
(iii) in view of the substantial risk that if the child was born it H
238 SUPREME COURT REPORTS [2017] 8 S.C.R.
A would suffer from such physical or mental abnormalities as to
be seriously handicapped,
(iv) as the pregnancy is alleged by pregnant woman to have
been caused by rape,
(v) as the pregnancy has occurred as result of failure of any
B contraceptive device or methods used by married woman or her
husband for the purpose of limiting the number of children
Note. -Account may be taken of the pregnant woman's actual
or reasonably foreseeable environment in determining whether
the continuance of her pregnancy would involve a grave injury
c to her physical or mental health.
Place ... .
Date .... .
Signature of the Registered
D Medical Practitioner/Practitioners"
26. Thus, the opinion has to be formed by the registered
practitioners as per the Act and they are required to form an opinion that
continuance of pregnancy would involve a grave mental or physical harm
to her. We have already referred to Explanation 1 which includes
E allegation of rape. As is perceivable, the appellant had gone from a
women rehabilitation centre, had given consent for termination of
pregnancy and had alleged about rape committed on her, but the
termination was not carried out. In such a circumstance, we are obliged
to hold that there has been negligence in carrying out the statutory duty,
as a result of which, the appellant has been constrained to suffer grave
F
mental injury.
27. In such a situation, submits Ms. Grover, the State is bound to
compensate the appellant under public law remedy. It is her proponement
that the appellant was suffering from mental retardation, but not from
mental illness and the distinction is clear from the language of sub-section
G (4) of Section 3 of the Act. That apart, her contention is that the victim
was a destitute and in such a situation, impleadment of her husband and
father for obtaining their consent was wholly unwarranted and, in a way,
allow time to 'rule'.
28. In Suchita Srivastava (supra), the High Court of Punjab &
H
MS. Z v. THE STATE OF BIHAR [DIPAK MISRA, J.] 239
Haryana ruled that it was in the best interests of a mentally retarded A
woman to undergo an abortion. The victim had become pregnant as a
result of an alleged rape that took place when she was an inmate at a ·
government-run welfare institution located in Chandigarh and after
discovery of her pregnancy, the Chandigarh Administration, approached
the High Court seeking approval for the termination of her pregnancy, B
keeping in mind that in addition to being mentally retarded she was also
an orphan who did not have any parent or guardian to look after her or
her prospective child. The High Court perused the preliminary medical
opinion and constituted an expert body and, eventually, directed the
termination of pregnancy in spite of the expert body's findings which·
show that the victim had expressed her willingness to bear a child. In C
that context, the Court adverted to the distinction between the 'mental
illness' and 'mental retardation'. It also noted that the expert body's
findings were in favour of continuation of pregnancy and took note of
the fact that the victim had clearly given her willingness to bear a child.
In that context, the Court stated:
D
"The victim's reproductive choice should be respected in spite
of other factors such as the lack of understanding of the sexual
act as well as apprehensions about her capacity to carry the
pregnancy to its full term and the assumption of maternal
responsibilities thereafter. We have adopted this position since
the applicable statute clearly contemplates that even a woman E
who is found to be "mentally retarded" should give her consent
for the termination of a pregnancy."
And again:
''There is no doubt that a woman's right to make reproductive F.
choices is also a dimension of"personal liberty" as understood
under Article 21 of the Constitution of India. lt is important to
recognise that reproductive choices can be exercised to procreate
as well as to abstain from procreating. The crucial consideration
is that a woman's right to privacy, dignity and bodily integrity
should be respected. This means that there should be no G
restriction whatsoever on the exercise of reproductive choices
such as a woman's right to refuse participation in sexual activity
or alternatively the insistence on use of contraceptive methods.
Furthermore, women are also free to choose birth control
methods such as undergoing sterilisation procedures. Taken 'to H
240 SUPREME COURT REPORTS (2017] 8 S.C.R.
A their logical conclusion, reproductive rights include a woman's
entitlement to carry a pregnancy to its full term, to give birth and
to subsequently raise children. However, in the case of pregnant
women there is also a "compelling State interest" in protecting
the life of the prospective child. Therefore, the termination ofa
pregnancy is only permitted when the conditions specified in the
8
applicable statute have been fulfilled. Hence, the provisions of
the MTP Act, 1971 can also be viewed as reasonable restrictions
that have been placed on the exercise ofreproductive choices."
29. Explaining the provision of the Act, the Court opined that
ordinarily a pregnancy can be terminated only when a medical practitioner
c is satisfied that a continuance of the pregnancy would involve risk to the
life of the pregnant woman or of grave injury to her physical or mental
health or when there is a substantial risk that if the child were born, it
would suffer from such physical or mental abnormalities as to be seriously
handicapped. While the satisfaction of one medical practitioner is required
D for tenninating a pregnancy within twelve weeks of the gestation period,
two medical practitioners must be satisfied about either of these grounds
in order to terminate a pregnancy between twelve to twenty weeks of
the gestation period.
30. The Court also took note of the provision that termination of
E the pregnancy has been contemplated when the same is the result of a
rape or a failure ofbirth control methods, since both of these eventualities
have been equated with a grave injury to the mental health of a woman.
The Court emphasized that in all such circumstances, the consent of the
pregnant woman is an essential requirement for proceeding with the
termination of pregnancy. The three-Judge Bench referred to the Persons
F with Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995 (for short, '1995 Act') and opined that in the
said Act also "mental illness" has been defined as mental disorder other
than mental retardation. The Court also took note of the definition of
"mental retardation" under the 1995 Act. The definition read as follows:
G "2(r) 'mental retardation' means a condition of arrested or
incomplete development of mind of a person which is specially
characterised by subnormality of intelligence."
31. The Court also apprised itself that the same definition of"mental
retardation" has also been incorporated under Section 2(g) of the National
H Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental
MS. Z v. THE STATE OF BIHAR [DIPAK MISRA, J.] 241
Retardation and Multiple Disabilities Act, 1999. Analysing the provision A
of Act. The Court opined that while a guardian can make decisions on
behalfofa "mentally ill person" as per Section 3(4)(a) of the 1971 Act,
the same cannot be done on behalf of a person who is in a condition of
"mental retardation". Thus, the difference between the 'mental illness'
and 'mental retardation' as recognized in law, was emphasised.
B
32. The three-Judge Bench proceeded to address the 'best
interest' of the victim and invocation of the doctrine ofparens patriae.
In that context, it held:
"As evident from its literal description, the "best interests" test
requires the Court to ascertain the course of action which would c
serve the best interests of the person in question. In the present
setting this means that the Court must undertake a careful inquiry
of the medical opinion on the feasibility of the pregnancy as well
as social circumstances faced by the victim. It is important to
note that the Court's decision should be guided by the interests
of the victim alone and not those of the other stakeholders such D
as guardians or the society in general. It is evident that the woman
in question will need care and assistance which will in tum entail
some costs. However, that cannot be a ground for denying the
exercise ofreproductive rights."
33. After so stating, the Court adverted to the facts of the case E
and came to hold that though the victim had been described as a person
suffering from mild mental retardation, that did not mean that she was
entirely incapable of making decision for herself. It discarded the
.'substituted judgment' test, which requires the Court to step into the
shoes of a person who is considered to be mentally incapable and attempt F
to make the decision which the said person would have made, if she was
competent to do so. The Court observed that it is a more complex
inquiry but this test can.only be applied to make decisions on behalf of
persons who are conclusively shown to be mentally incompetent. The
Court noted that there are varying degrees of mental retardation, namely,
those described as borderline, mild, moderate, severe and profound G
instances of the same. Persons suffering from severe and profound
mental retardation usually require intensive care and supervision and a
perusal of academic materials suggests that there is a strong preference
for placing such persons in an institutionalised environment. However,
persons with borderline, mild or moderate mental retardation are capable H
242 SUPREME COURT REPORTS [2017] 8 S.C.R.
A of living in normal social conditions even though they may need some
supervision and assistance from time to time.
34. The Court referred to the United Nations Declaration on the
Rights of Mentally Retarded Persons, 1971 [GA Res 2856 (XXVI) of
20-12-1971] and relied on principle No.7 of the same. Principle No. 7
B reads as follows:
"Whenever mentally retarded persons are unable, because of
the severity of their handicap, to exercise all their rights in a
meaningful way or it should become necessary to restrict or
deny some or all of these rights, the procedure used fot that
c restriction or denial of rights must contain proper legal safeguards
against every form of abuse. This procedure must be based on
an evaluation of the social capability of the mentally retarded
person by qualified experts and must be subject to periodic review
and to the right of appeal to higher authorities."
D 35. Placing reliance on the same, it observed thus:
"In respecting the personal autonomy of mentally retarded persons
with regard to the reproductive choice of continuing or terminating
a pregnancy, the MTP Act lays down such a procedure. We
must also bear in mind that India has ratified the Convention on
E the Rights of Persons with Disabilities (CRPD) on 1-10-2007
and the contents of the same are binding on our legal system.
x x x x
It would also be proper to emphasise that persons who are found
to be in a condition of borderline, mild or moderate mental
F retardation are capable of being good parents. Empirical studies
have conclusively disproved the eugenics theory that mental
defects are likely to be passed on to the next generation. The
said "eugenics theory" has been used in the past to perform
forcible sterilisations and abortions on mentally retarded persons.
[See generally: Elizabeth C. Scott, "Sterilization of Mentally
G
Retarded Persons: Reproductive Rights and Family Privacy",
Duke Law Journal 806-65 (November 1986).] We firmly believe
that such measures are anti-democratic and violative of the
guarantee of "equal protection before the law" as laid down in
Article 14 ofour Constitution.
H
MS. Z v. THE STATE OF BIHAR [DIPAK MISRA, J.] 243
It is also pertinent to note that a condition of"mental retardation" A
or developmental delay is gauged on the basis of parameters
such as intelligence quotient (IQ) and mental age (MA) which
mostly relate to academic abilities. It is quite possible that a person
with a low IQ or MA may possess the social and emotional
capacities that will enable him or her to be a good parent. Hence, B
it is important to evaluate each case in a thorough manner with
due weightage being given to medical opinion for deciding whether
a mentally retarded person is capable of performing parental
responsibilities."
36. On the basis of the aforesaid analysis, the Court concluded:
c
"In our considered opinion, the language of the MTP Act clearly
respects the personal autonomy of mentally retarded persons
who are above the age of majority. Since none of the other
statutory conditions have been met in this case, it is amply clear
that we cannot permit a dilution of the requirement of consent
for proceeding with a termination of pregnancy. We have also D
reasoned that proceeding with an abortion at such a late stage
(19-20 weeks of gestation period) poses significant risks to the
physical health of the victim."
37. In the said case, the Court took note of the fact that the expert
body which had examined the victim indicated that the continuation of E
the pregnancy did not pose any grave risk to the physical and mental
health of the victim and that there was no indication that the prospective
child was likely to suffer from a congenital disorder. Regard being had
to the totality of the facts and circumstances of the case, it was directed
that the best medical facilities be made available so as to ensure proper F
care and supervision during the period of pregnancy as well as for the
post-natal care.
38. In a recent decision in Ms. Eera Thr. Dr. Manjula
Krippendorf v. State (Govt. of NCT of Delhi) and another 9, the
distinction between the mental illness and mental retardation, keeping in G
· view the statutory provisions and the concept of purposive interpretation,
has been accepted.
39. In. the case at hand, the appellant is a victim of rape. She
suffers from mild mental retardation and she is administered psychiatry
'2017(8)SCALE112 H
244 SUPREME COURT REPORTS [2017] 8 S.C.R.
A treatment, but she is in a position to express her consent. Under the
statutory framework, she was entitled to give her consent for termination
of pregnancy. As is evident, she did not desire to bear a child. This is a
reverse situation what has been portrayed in Suchita Srivastava (supra).
The principle set out in Suchita Srivastava (supra) emphasizes on
consent. As the facts would unfurl, the appellant had given consent for
B
termination and she had categorically alleged about rape. In such a
circumstance, we perceive no fathomable reason on the part of the PMCH
not to have proceeded for termination of the pregnancy because there
was nothing on record to show that there was any danger to the life of
the victim.
c 40. In this context, we may refer with profit to the recent decision
rendered inX v. Union of/ndia (supra) wherein the Court laying stress
on a woman's right to make reproductive choices and further taking into
consideration the report of the Medical Board directed as follows:
"Though the current pregnancy of the petitioner is about 24
D weeks and endangers the life and the death of the foetus outside
the womb is inevitable, we consider it appropriate to permit the
petitioner to undergo termination of her pregnancy under the
provisions of the Medical Termination of Pregnancy Act, 1971.
We order accordingly."
E 41.In Sheetal Shankar Salvi (supra), a two-Judge Bench
declined termination of pregnancy after perusal of the report of the
Medical Board. The observations and the conclusion of the Court are to
the following effect:
"However, having regard to the fact that there is no danger
F to the mother's life and the likelihood that 'the baby may be born
alive and may survive for variable period of time, we do not
consider it appropriate in the interests of justice to direct the
respondents to allow petitioner no. 1 to undergo medical
termination of her pregnancy. In fact, the aforesaid Medical
Board has itself stated that it does not advise medical termination
G of pregnancy for petitioner no. 1 on medical grounds.
The only other ground that appears from the observations
made in the aforesaid medical report apart from the medical
grounds, is that petitioner no. 1 is anxious about the outcome of
the pregnancy. We find that the termination of pregnancy cannot
H be permitted due to this reason."
MS. Z v. THE STATE OF BIHAR [DIPAK MISRA, J.] 245
On a careful reading of the aforesaid decision, we do not have A
slightest hesitation in our mind that the facts in the said cases and the
observations made therein have no application to the facts of the instant
case.
42. In Meera Santosh Pal (supra), the Court noted the fact that
the foetus is without a skull and would, therefore, not be in a position to B
survive. The Court adverted to the fact that the petitioner therein was a
woman of average intelligence and with good comprehension and she
had understood that her foetus was abnormal and the risk of foetal
mortality was high. She had also the support of her husband in her
decision-making. The Court allowed the termination of pregnancy despite
the pregnancy having gone into 24th week. What weighed with the Court C
was danger to the life of the woman and the certain inability of the
foetus to survive. extra-uterine life. Emphasis has been laid on the aspect
that the overriding consideration is that she has a right to take all such
steps as necessary to preserve her own life against the avoidable danger
~it. D
43. In the case at hand, we have noted, termination of pregnancy
could have been risky to the life of the appellant as per the report of the
Medical Board at AIIMS which was constituted as per the direction of
this Court on 3nt May, 2017. This situation could have been avoided had
the decision been taken at the appropriate time by the government hospital E
at Patna. For the negligence and carelessness of the hospital, the appellant
has been constrained to suffer. The mental torture on certain occasions
has more grievous impact than the physical torture.
44. In Mehmood Nayyar Azam v. State of Chhattisgarh 10, the
Court has observed that the word "torture" in its denotative concept F
includes mental and psychological harassment. It has the potentiality to
cause distress and affects the dignity of a citizen. Under the present
Act, the appellant is covered by the definition. In such a situation, there
was no justification to push back her rights and throw her into darkness
to corrode her self-respect and individual concern. She had decided to
exercise her statutory right, being a victim ofrape, not to bear the child G
and more so, when there is possibility of the child likely to suffer from
HIV+ve, the authorities of the State should have been more equipped to
assist the appellant instead of delaying the process. That apart, as is
seen, the State in a way contested the matter before the High Court on
"c2012) s sec 1 H
246 SUPREME COURT REPORTS [2017] 8 S.C.R.
A the foundation of State interest. The principle of State interest is not at
all applicable to the present case. Therefore, the concept of grant of
compensation under public law remedy emerges.
45. In Nilabati Behera (supra), Justice J.S. Verma, (as His
Lordship then was), opined thus:
B '"a claim in public law for compensation' for contravention of
human rights and fundamental freedoms, the protection of which
is guaranteed in the Constitution, is an acknowledged remedy
for enforcement and protection of such rights, and such a claim
based on strict liability made by resorting to a constitutional remedy
provided for the enforcement of a fundamental right is 'distinct
c from, and in addition to, the remedy in private law for damages
for the tort' resulting from the contravention of the fundamental
right. The defence of sovereign immunity being inapplicable, and
alien to the concept of guarantee of fundamental rights, there
can be no question of such a defence being available in the
D constitutional remedy. It is this principle which justifies award of
monetary compensation for contravention of fundamental rights
guaranteed by the Constitution, when that is the only practicable
mode of redress available for the contravention made by the
State or its servants in the purported exercise of their powers,
and enforcement of the fundamental right is claimed by resort to
E
the remedy in public law under the Constitution by recourse to
Articles 32 and 226 of the Constitution."
46. Dr.A.S. Anand, (as His Lordship then was), in his concurring
opinion, expressed that:
"The relief of monetary compensation, as exemplary damages,
F in proceedings under Article 32 by the Supreme Court or under
Article 226 by the High Courts, for established infringement of
the indefeasible right guaranteed under Article 21 of the
Constitution is a remedy available in public law and is based on
the strict liability for contravention of the guaranteed basic and
G indefeasible rights of the citizen. The purpose of public law is
not only to civilize public power but also to assure the citizen that
they live under a legal system which aims to protect their interests
and preserve their rights. Therefore, when the court moulds the
relief by granting 'compensation' in proceedings under Articles
32 or 226 of the Constitution seeking enforcement or protection
1-I
MS. Z v. THE STATE OF BIHAR [DIPAK MISRA, J.] 247
of fundamental rights, it does so under the public law by way of A
penalising the wrongdoer and fixing the liability for the pubiic
wrong on the State which has failed in its public duty to protect
the fundamental rights of the citizen. The payment of
compensation in such cases is not to be understood, as it is
generally understood in a civil action for damages under the private B
law but in the broader sense of providing relief by an order of
making 'monetary amends' under the public law for the wrong
done due to breach of public duty, of not protecting the
fundamental rights of the citizen. The compensation is in the
nature of 'exemplary damages' awarded against the wrongdoer
for the breach of its public law duty and is independent of the C
rights available to the aggrieved party to claim compensation
under the private law in an action based on tort, through a suit
instituted in a court of competent jurisdiction or/and prosecute
the offender under the penal law."
47. In Sube Singh v. State of Haryana 11 , a three-Judge Bench, D
after referring to earlier decisions, held:
"It is thus now well settled that the award of compensation against
the State is an appropriate and effective remedy for redress of
an established infringement of a fundamental right under Article
21, by a public servant. The quantum of compensation will,
however, depend upon the facts and circumstances of each case. E
Award of such compensation (by way of public law remedy)
will not come in the way of the aggrieved person claiming
additional compensation in a civil court, in the enforcement of
the private law remedy in tort, nor come in the way of the criminal
court ordering compensation under Section 357 of the Code of F
Criminal Procedure."
48. In Hardeep Singh v. State of M.P. 12, though the High Court
had granted compensation of Rs. 70,000/-, this Gourt,while concurring
with the opinion that related to justification of compensation, enhanced
the compensation by holding thus:
G
"Coming, however, to the issue of compensation, we find that 'in
the light of the findings arrived at by the Division Bench, the
compensation of Rs 70,000 was too small and did not do justice
to the sufferings and humiliation undergone by the appellant. In
11
(2006)3 sec t 7 s
12
(2012) 1 sec 748 H
248 SUPREME COURT REPORTS [2017] 8 S.C.R.
A the facts and circumstances of the case, we feel that a surri of
Rs 2,00,000 (Rupees two lakhs) would be an adequate
compensation for the appellant and would meet the ends of
justice. We, accordingly, direct the State of Madhya Pradesh to
pay to the appellant the sum of Rs 2,00,000 (Rupees two lakhs)
as compensation. In case the sum of Rs 70,000 as awarded by
B
the High Court, has already been paid to the appellant, the State
would naturally pay only the balance amount of Rs 1,30,000
(Rupees one lakh thirty thousand)."
49. In Chairman, Railway Board (supra), the Court copiously
adverted to the public law remedy and finding fault with the Railways
c and opined that:
"Running of the Railways is a commercial activity. Establishing
the Yatri Niwas at various railway stations to provide lodging
and boarding facilities to passengers on payment of charges is a
part of the commercial activity of the Union of India and this
D activity cannot be equated with the exercise of sovereign power.
The employees of the Union oflndia who are deputed to run the
Railways and to manage the establishment, including the railway
stations and the Yatri Niwas, are essential components of the
government machinery which carries on the commercial activity.
If any of such employees commits an act of tort, the Union
E Government, of Which they are the employees, can, subject to
other legal requirements being satisfied, be held vicariously liable
in damages to the person wronged by those employees. Kasturi
Lal decision46 therefore, cannot be pressed into aid. Moreover,
we are dealing with this case under the public law domain and
F not in a suit instituted under the private law domain against persons
who, utilising their official position, got a room in the Yatri Niwas
booked in their own name where the act complained of was
committed."
50. On the aforesaid basis, this Court affirmed the judgment of
the High Court and directed that the amount of compensation should be
G made over to the High Commissioner for Bangladesh in India for payment
of the same to the victim as she was entitled to it.
51. In Rini Johar and another v. State of Madhya Pradesh
and others13 , the petitioners therein were arrested in violation of the
mandate of law under Section 41 A of the Code of Criminal Procedure
H " (2016) 11sec703
MS. Z v. THE STATE OF BIHAR [DIPAK MISRA, J.] 249
and the judgment of this Court rendered in D.K. Basu (supra). The A
petitioners in the said case were a doctor and a practicing advocate.
The arrest being illegal, the Court opined that their dignity had been
absolutely jeopardized. Referring to the earlier decisions, the Court held
as under:
"In such a situation, we are inclined to think that the dignity of B
the petitioners, a doctor and a practising advocate has been
seriously jeopardised. Dignity, as has been held in Charu
Khurana v. Union of India, (2015) I SCC 192, is the
quintessential quality of a personality, for it is a highly cherished
value. It is also clear that liberty of the petitioner was curtailed in
violation of law. The freedom of an individual has its sanctity. C
When the individual liberty is curtailed in an unlawful manner,
the victim is likely to feel more anguished, agonised, shaken,
perturbed, disillusioned and emotionally tom. It is an assault on
his/her identity. The said identity is sacrosanct under the
Constitution. Therefore, for curtailment ofliberty, requisite norms D
are to be followed. Fidelity to statutory safeguards instil faith of
the collective in the system. It does not require wisdom of a seer
to visualise that for some invisible reason, an attempt has been
made to corrode the procedural safeguards which are meant to
sustain the sanguinity of liberty. The investigating agency, as it
seems, has put its sense ofaccountability to law on the ventilator. E
The two ladies have been arrested without following the .
procedure and put in the compartment of a train without being
produced before the local Magistrate from Pune to Bhopal. One
need not be Argus-eyed to perceive the same. Its visibility is as
clear as the cloudless noon day. It would not be erroneous to say F
that the enthusiastic investigating agency had totally forgotten
the golden words of Benjamin Disraeli:
"I repeat ... that all power is a trust-that we are accountable
for its exercise-that, from the people and for the people, all
springs and all must exist."
G
We are compelled to say so as liberty which is basically the
splendour of beauty oflife and bliss of growth, cannot be allowed
to be frozen in such a contrived winter. That would tantamoµnt
to comatosing of liberty which is the strongest pillar of
democracy."
H
250 SUPREME COURT REPORTS [2017] 8 S.C.R.
A 52. After so holding, the Court referred to the concept of public
law remedy and awarded Rs. 5,00,000/- (Rupees five lakhs only) towards
compensation to each of the petitioners to be paid by the State within a
stipulated time.
53. In the instant case, it is luminescent that the appellant has
B suffered grave injury to her mental health. The said injury is in continuance.
It is a sad thing that despite the prompt attempt made by this Court to get
her examined so that she need not undergo the anguish of bearing a
child because she is a victim of rape, it could not be so done as the
medical report clearly stated that there was risk to the life of the victim.
Therefore, we are inclined to think that the continuance of the injury
C creates a dent in the mind and the appellant is compelled to suffer the
same. One may have courage or cultivate courage to face a situation,
but the shock of rape is bound to chain and enslave her with the trauma
she has faced and cataclysm that she has to go through. Her condition
cannot be reversed. The situation as is unredeemable. But a pregnant
D one, she has to be compensated so that she lives her life with dignity and
the authorities of the State who were negligent would understand that
truancy has no space in a situation of the present kind. What needed is
promptitude.
54. This Court had earlier directed that she should be paid
E compensation under the Victims Compensation Scheme as framed under
Section 357-A of the Code of Criminal Procedure. She has been paid
Rs. 3,00,000/- as she has been a victim of rape. It may be clearly stated
that grant of compensation for the negligence and the suffering for which
the authorities of the State are responsible is different as it comes within
the public law remedy and it has a different compartment. Keeping in
view the mental injury that the victim has to suffer, we are disposed to
think that the appellant should get a sum of Rs. I0,00,000/-(Rupees ten
lakhs only) as compensation from the State and the same shall be kept in
a fixed deposit in her name so that she may enjoy the interest. We have
so directed as we want that money to be properly kept and appropriately
G utilized. It may also be required for child's future. That apart, it is
directed, that the child to be born, shall be given proper treatment and
nutrition by the State and if any medical aid is necessary, it shall also be
provided. If there will be any future grievance, liberty is granted to the
appellant to approach the High Court under Article 226 of the Constitution
of India after the birth of the child.
H
MS. Z v. THE STATE OF BIHAR [DIPAK MISRA, J.] 251
55. Having said so, it is necessary to state that the learned singe A
Judge should have been more alive to the provisions of the Act and the
necessity of consent only of the appellant in the facts of the case. There
was no reason whatsoever to implead the husband and father of the
appellant. We say so as it is beyond an iota of doubt that the appellant
was a destitute, a victim ofrape and further she was staying in a shelter B
home. Calling for a medical report was justified but to delay it further
was not at all warranted. It needs to be stated that the High Courts are
required to be more sensitive while dealing with matters of the present
nature.
56. We will be failing in our duty if we do not deal with the
submission of the learned counsel for the State. According to her, State C
·should not be made liable because of the fault of the Court. The principle
ofactus curiae neminem gravabit basically means an act of the court
shall prejudice no man. Though such a principle has been advanced yet
the same is not applicable to the facts of the case at hand. In A.R.
Antulay v. R.S. Nayak14 , Sabyasachi Mukharji, J. (as His Lordship D
then was), speaking for the majority for the Constitution Bench, quoted
the following observation of Lord Cairns in Rodger v. Comptoir
D 'Escompte de Paris 15 :
"Now, their Lordships are of opinion, that one of the first and
highest duties of all Courts is to take care that the act of the E
Court does no injury to any of the Suitors, and when the expression
'the act of the Court' is used, it does not mean merely the act of
the Primary Court, or of any intermediate Court of appeal, but
the act of the Court as a whole, from the lowest Court which
entertains jurisdiction over the matter up to the highest Court
which finally disposes of the case. It is the duty of the aggregate F
of those Tribunals, ifl may use the expression, to take care that
no act of the Court in the course of the whole of the proceedings
does an injury to the suitors in the Court."
The aforesaid principle despite its broad connotation is not attracted
to the obtaining factual matrix inasmuch we have granted compensation G
because of the delay caused by the authorities of PMCH.
57. Before parting with the case, we must note that India has
ratified the Convention on the Elimination ofAll Forms of Discrimination
1
• (1988) 2 sec 602
1'(1871) LR 3 PC 465: 17 ER 120 H
252 SUPREME COURT REPORTS [2017] 8 S.C.R.
A Against Women (CEDAW) in 1993 and is under an international obligation
to ensure that the right of a woman in her reproductive choices is
protected. Articles 11 of the said Convention provides that all State
parties shall ensure the right to protection of health and to safety in
working conditions, including the safeguarding of the function of
B reproduction. Article 12 of the Convention stipulates that State parties
shall take all appropriate measures to eliminate discrimination against
women in the field of health care in order to ensure, on a basis of equality
of men and women, accesses to health care services, including those
related to family planning.
58. The legislative intention of 1971 Act and the decision inSuchita
C Srivastava (supra) prominently emphasise on personal autonomy of a
pregnant woman to terminate the pregnancy in terms of Section 3 of the
Act. Recently, Parliament has passed the Mental Healthcare Act, 2017
which has received the assent of the President on 7'h April, 2017. The
said Act shall come into force on the date of notification in the official
D gazette by the Central Government or on the date of completion of the
period of nine month$ fmm 7tl•April, 2017. We are referring to the same
only to highlight the legislative concern in this regard. It has to be borne
in mind that element of time is extremely significant in a case of pregnancy
as every day matters and, therefore, the hospitals should be absolutely
careful and treating physicians should be well advised to conduct
E themselves with accentuated sensitivity so that the rights of a woman is
not hindered. The fundamental concept relating to bodily integrity, personal
autonomy and sovereignty over her body have to be given requisite respect
while taking the decision and the concept of consent by a guardian in the
case of major should not be over emphasized.
F 59. In view of the aforesaid analysis, the appeal is allowed to the
extent indicated above and the order passed by the High Court .is set
aside except for the direction pertaining to investigation carried out on
the basis of the FIR lodged by the appellant. There shall be no order as
to costs.
G
Divya Pandey Appeal allowed.
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