Woman’s Right to Abort Outweighs Right of Foetus: Rajasthan HC

In an important decision by the Rajasthan High Court (HC) on Friday which leaned towards the pro-choice side of the abortion debate, it was ruled that the right of a child rape victim to terminate her pregnancy is a fundamental right under Article 21 of the Indian constitution. The judgment also said that the right to reproductive choice of a woman outweighs the right to life of the unborn foetus.

While passing this decision, the bench of Justice Sandeep Mehta and Justice Pushpendra Singh Bhatti set aside a previous judgement given by a single judge bench of the same HC. The previous judgement had considered a rape victim’s right to live with integrity as only a part, among other rights, of the right to life. By contrast, it was seen by the previous judgement that the right to life of an unborn foetus was a substantial right, and should thus acquire precedence over rape victim’s right to live with dignity.

The judgement came in the case of State of Rajasthan v. S. In the case, a 17-year-old girl had been raped, and consequently conceived. The rape victim filed an application to terminate the pregnancy. The Special Judge dismissed the plea. The child rape victim then filed a writ petition before the Rajasthan High Court. The above mentioned single judge bench of the High Court dismissed the petition and directed an interested NGO, Navjeewan Sansthan to take custody of the to-be-born child.

The State Govt. then appealed against the order and filed a special writ petition before the same Court. The State Government claimed that “the impugned Judgement impinges upon the fundamental right of victims of rape from seeking termination of a forced pregnancy”.

While pronouncing the judgement, the High Court Bench observed that a child conceived out of a heinous crime such as rape shall cause grave injury to the mental health of a pregnant woman. The HC also noted that the forced nature of the rape victim’s pregnancy would create a social stigma which shall remain with her for the remainder of her life while also affecting her marriage prospects. The Bench also observed that after being directed to hand over the child to the NGO, Navjeewan Sansthan, the rape victim “might carry a constant feeling of remorse in her mind regarding the fate of her child”.

The judgement however carries no practical implications in this particular case as the baby has already been delivered. However it might serve as an important precedent in future cases. The judgement concluded by providing extensive directions in order to ensure that such situations may not recur in future.

Image Credit: Giving Compass