Court proceedings are, in many ways, an elaborate performance. The courtroom is the stage, judges and lawyers are the actors while laws and rules of procedure are the tools within the framework of which the script can be written. However, every once in a while, the actors break character.
The script is tossed, the actors succumb to their urge to act with abandon and without the limiting conformations of the script. The case described below was one such instance.
The Bombay high court was hearing a petition filed by the adoptive father of a 27-year-old woman seeking the termination of her 21-week pregnancy. The petition was filed in her name with the father signing the petition acting as her guardian or “next friend”, based on the claim that she was mentally ill.
The order passed on the first date when the matter was heard refers to the pleadings in the petition which clearly stated that the woman did not wish to terminate the pregnancy and the father was therefore constrained to file a writ petition seeking such a direction from the high court.
No person can file court proceedings on behalf of another competent adult, even if they claim to be acting in their interest. The possible harms that could arise from this are so self-evident that they do not need further elaboration.
While the Bombay High Court Rules allow exceptions in the case of minors and persons of unsound mind where a “next friend” can file a petition on behalf of such a person, they also require an affidavit to be presented along with the petition, stating that they do not have any interest directly or indirectly adverse to that of the minor or person of unsound mind.
Further, the person has to be adjudged as being of unsound mind or must be found by the court, upon inquiry, of being of unsound mind.
No such affidavit appears to have been filed in the present case. The father’s interests were clearly adverse to that of the woman since he sought the termination of her pregnancy which she wished to continue. There was no adjudication by any authority that the woman was of unsound mind.
On the authority of a woman
The Medical Termination of Pregnancy Act, 1981, requires the consent of the pregnant woman to terminate the pregnancy. If the woman is “mentally ill”, which is defined as “a person who is in need of treatment by reason of any mental disorder other than mental retardation”, the consent of the guardian is to be sought.
The Madras high court in V. Krishnan v. G. Rajan alias Madipu Rajan [(1994) 113 Mad.L.W. 89 (DB)] has clarified that this provision is not to be interpreted to mean that the consent of the woman herself is immaterial. Rather, the consent of her guardian is to be additionally sought.
The Bombay high court ought to have dismissed the petition at this stage itself, since it was filed in contravention of the rules of procedure without authority of the person on whose behalf the reliefs had been claimed and further, the MTP Act did not allow the termination of a pregnancy without the consent of the woman.
However, far from doing so, on the first date when the matter was taken up, the court constituted a medical committee to undertake an evaluation of not the woman, but the foetus.
The reason for emphasising this is that it established at this stage itself that the woman’s refusal to file the petition or to terminate her pregnancy, which is specifically noted in the order, did not matter.
The court would decide what was best for the foetus in the womb. Interestingly, this order, and all the ones that followed, refer to the woman as a “would-be mother”.
Perhaps without realising it, during the proceedings in court, the judges referred to the 27-year old woman as a child.
Concerned about the woman’s privacy being violated, the order passed on this date also directed the registry to mask the woman’s name and that she should be referred to as “XYZ, c/o her father (by legal adoption)”.
The report of the medical committee noted that the foetus was healthy and there was no congenital anomaly. As far as the woman is concerned, the report stated that she had a borderline intellectual disability. Curiously, the report then notes that the psychiatry department suggested the medical termination of pregnancy from a “psychiatry point of view”.
The woman’s views about the pregnancy or her consent for the termination of the pregnancy do not find any place in this report.
On the next date when the matter was taken up, after noting the report of the medical committee and several prior medical reports including a psychiatric evaluation, the court observed that the woman only had a mild intellectual disability which did not make her mentally ill or a person with a mental disorder or mental retardation.
The story should have ended here, and the petition should have been dismissed (perhaps even with exemplary costs).
However, the court kept the petition pending and directed the father to have an interaction with the “male counterpart” with whom she had a relationship (which led to her pregnancy) to explore the possibility of marriage.
In exact words, the court directed the father to “initiate some steps to have an interaction with the said man, and find out whether he is already married and if not, whether he is inclined to marry the daughter of the Petitioner”.
Prior to this, the father was chided for filing the petition but not because it was against the express wishes of the woman. The court inquired rhetorically whether a woman with below average intelligence did not have the “right to be a mother” and whether a foetus with a beating heart did not have the right to life.
Note that even at this stage the court was not concerned about the woman’s decisional autonomy and her right to decide what was best for her, but was concerned with her “right” to be a mother and the alleged right of the foetus to survive.
On the next date, the advocate representing the father informed the court that there was a possibility that the woman and the man may marry and accordingly sought instructions to withdraw the petition. The court was satisfied.
The woman would now become XYZ c/o the male counterpart. The court allowed the withdrawal of the petition on instructions.
Reproductive right under Article 21
In the last decade there have been innumerable judgments of various high courts and several judgments of the Supreme Court emphasising the right to reproductive autonomy. This has followed from the recognition of the right to make reproductive choices as a facet of the right to life under Article 21 of the Constitution of India.
The facts of this case also bear a striking resemblance to the first significant judgment of the Supreme Court recognising reproductive rights under Article 21 – Suchita Srivastava v. Chandigarh Administration [(2009) 9 SCC 1].
Nineteen-year-old Suchita Srivastava, who was an inmate in a state-run shelter home in Chandigarh, was pregnant. Although she wished to continue with the pregnancy, the state administration filed a petition in the High Court of Punjab and Haryana seeking the termination of the pregnancy.
The high court directed the termination of the woman’s pregnancy on the ground that the woman was mentally retarded and therefore incapable of making an informed decision on her own. In an appeal against the said order, the Supreme Court observed that the state administration could not claim guardianship of the woman and that the woman’s right to reproductive autonomy is a dimension of Article 21 of the Constitution.
The various components that make up this right, such as the right to bodily and decisional autonomy, have been fleshed out in several judgments that have followed.
Having noted that the woman did not wish to terminate the pregnancy, applying these precedents, the high court ought to have dismissed the petition. Its failure to do so calls for closer scrutiny.
What was the motivation of the court to direct the foetus to be examined? If the foetus was detected with a congenital defect, would the court have directed the termination of the pregnancy? What would have happened if the male partner refused to marry the woman? Would the court have allowed the petition filed by her father?
Where did the woman’s desire about the course of her own life and body figure in all of this?
What underlies these court proceedings and the comments made in open court is that the woman is seen as inherently incapable of deciding what is in her own best interest.
Even though the court notes several times that the woman is not mentally ill and is therefore competent and capable of consenting, she is still seen as a ward of the father, in need of protection and guidance.
However, having declared the father as having failed in his duty (for having allowed the woman to stay out of the house after 10 p.m., amongst other reasons), the court assumes the role of parens patriae, the father-figure.
Once the court was satisfied that the woman would be married and would therefore have a male custodian, it permitted the withdrawal of the petition.
Will precedent be applied, will the provisions of a legislation be strictly or liberally interpreted, will rules be uniformly applied? In what circumstances will the principle of ‘equity’, allowing judges to go off-script if the situation demands, be deployed? Are rules of procedure seen as malleable or as immutable and rigid?
This depends on the end to be achieved. This end, whether consciously determined or not, is invariably to preserve the status quo rather than to effect change. There are innumerable instances of judges using the shield of procedure, choosing to adopt a hyper-technical approach to deny claims for substantive justice.
On the other hand, in instances such as this, which threaten to undermine a person’s constitutionally protected right, rules of procedure are seen as optional.
This is not meant to be a criticism of the particular judges that heard the matter. Judges are ultimately products of the world they inhabit. Nor is it meant to be a criticism of the judge’s misplaced concern for the foetus or the so-called right to life of the foetus – that is deserving of an article of its own (although the patriarchal notions that such a view flows from is worth noting).
It is, rather, meant to be a commentary on the pervasiveness of patriarchal notions regarding women’s autonomy and their right to self-determination and how these views insidiously make their way to judicial proceedings and determinations.
While judges are not insulated from these belief systems, it is crucial that these instances, when they occur, are exposed and scrutinised.
One might argue that no harm was ultimately caused in this matter since the petition was permitted to be withdrawn.
However, proceedings in matters such as this must be examined not for what the outcome was, but for what they reveal about the attitudes of those occupying powerful positions as well as the society of which they are part, and the potential for these attitudes to do actual harm.
Meenaz Kakalia is a lawyer practicing at the Bombay High Court, primarily in the areas of environmental law and reproductive rights.
