Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.10463 OF 2017

Ms. Z ... Appellant(s)

Versus

The State of Bihar and Others …Respondent(s)

J U D G M E N T

Dipak Misra, J.

An interlocutory application being I.A. No. 64980 of

2017 has been filed seeking certain directions. Having

heard learned counsel for the parties, it is directed that

name of the 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. Z in 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. Z in all records, including the official

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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 provisions of law 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 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 of Bihar for destitute

women. The woman, a destitute, was found to be

pregnant by the functionaries of the home and further

3

being aware of the fact that she had been condemned to

that condition because of rape committed 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

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 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

4

25

th

January, 2017, she was brought to Shanti Kutir. The

medical test done by Shanti Kutir showed that she was

pregnant. On 2

nd

February, 2017, she was taken to Patna

Medical College Hospital, Patna (PMCH), for medical

examination. On 8

th

February, 2017, an ultrasound test

was done at PMCH, and it was found that she was 13

weeks and 6 days pregnant. On 4

th

March, 2017, she

expressed her desire to terminate the pregnancy and,

accordingly, she 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 14

th

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 hospital authorities

did not proceed with the termination of the pregnancy. It

is worthy to mention here that on 18

th

March, 2017, an

F.I.R. under Section 376 of the Indian Penal Code (IPC)

was registered with Mahila Police Station, Patna as Case

No.13 of 2017. The Home Superintendent, Shanti Kutir

wrote to the Superintendent of Patna Medical College and

5

Hospital, Patna, stating, inter alia, that the pregnancy is

more than 17 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

rd

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 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 of 2017

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 she was HIV+ve. The High Court,

on 10

th

April, 2017, permitted the counsel for the victim

to implead the husband and her father and the Director

of Indira 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

6

petitioner therein and the fetus. On that day, the High

Court also 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

Mahila P.S. Case No.13 of 2017.

5.It is apt to note here that the Director, IGIMS, Patna

was 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 the fetus. The writ petitioner

was directed to make herself present before the Director,

IGIMS, on 11

th

April, 2017 at 10.30 a.m. The IGIMS

examined the victim and submitted a report in a sealed

cover.

7

6.As the factual matrix would further uncurtain, on

18

th

April, 2017, the High Court took note of the fact that

the name of the appellant’s 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

th

April, 2017. On 20

th

April,

2017, the matter could not be taken up and stood

adjourned to 21

st

April, 2017. On the adjourned date,

the father of the appellant prayed for time to file counter

affidavit. The High Court 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 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.

8

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 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 children were born,

but the victim had deserted him in March, 2007, and the

said circumstances led him to file Matrimonial Suit No.

984 of 2015 before the Principal Judge, Family Court,

Patna, seeking dissolution of marriage.

7.The High Court perused the report submitted by

IGIMS, which suggested that the pregnancy was 20 to 24

weeks old and the termination of pregnancy would

require major surgical procedure along with the

subsequent consequences such as bleeding, sepsis and

9

anesthesia hazards. The report that was filed by IGIMS,

which has been referred to by the High Court, needs to

be reproduced:

Issues Opinion

1. Examination report of the

patient (petitioner) with regard

to her physical and mental

stage (Physical Medical

examination of all system will

be desirable:

Respiratory, CVS, Neurology

etc.

Physical Examination: Pulse –

100/min regular, BP-114/80

mmHg, Pallor-Mild, lcerus-NIL,

edema-Nil, Cyanosis &

clubbing-Nil, JVP – normal,

Chest – B/L clear no added

sound; CVS-S1 & S2 – Normal,

no added sound; P/A exam-

fundal height corresponds to

22-24 wk pregnancy; CNS –

Higher mental function intact,

no focal neurological deficit.

Mentally alert, well oriented

with time, place & person

(Annexure I)

2. Stage of Pregnancy. 2

nd

trimester of approximately

23 wks (as per 1

st

USG report of

whole abdomen on 08.02.2017

of PMCH. And IGIMS, USG on

dated 11.04.2017 shows 21

wks fetus…..(Annexure-II)

According to recommendations

1

st

i.e., earliest USG is to be

used for Gestational age

calculation.

3. Overall condition of foetusNormal single alive

intra-uterine foetus (As per

Physical examination and USG

report)

4. How far the termination of

pregnancy will be detrimental

to the petitioner.

Termination of Pregnancy at

this stage sometimes may need

major surgical procedure along

with the subsequent

consequences such as

Bleeding, Sepsis and

Anesthesia hazards.

5.How far it will be

detrimental, if the petitioner is

allowed to complete full term

The patient can continue

pregnancy according to NACO

guidelines. Still there is

10

of pregnancy. likelihood that fetus may be

HIV+ve. But definitive

diagnosis can only be given

when the child is 18 months

old.

6 How far it will be

detrimental to the petitioner

and foetus, particularly in view

of the fact that she is mentally

abraised and HIV+VE.

As per the clinical assessment

& documentary evidence, the

patient is diagnosed to have

Psychiatry illness, provisionally

Schizophrenia with Mild Mental

Retardation. She is currently

on medications and

behaviourally stable and will

require long term psychiatry

treatment.

7. Investigation reports Reports which are made

available before the Board

Members are….. Annexure-III.

Some investigation reports

which are 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

marker congenital abnormality

of foetus can be assessed.

8.The learned Single Judge, after referring to the

provisions of the Act, observed thus:

“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

HIV+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 if the

victim is allowed to carry the pregnancy to its

11

full course, then she will suffer any risk of life

or grave 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 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 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

th

week of pregnancy, but the present

writ application has been filed before this

Court after 20 weeks of her pregnancy.”

9.After so stating, the High Court adverted to Sections

3 to 5 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 Pal v. Union of India

1

,

X v. Union of India and others

2

and X v. Union of

1 AIR 2017 SC 461

2 AIR 2017 SC 1055

12

India and others

3

. He placed reliance on Sheetal

Shankar Salvi and another v. Union of India

4

,

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.

Chandigarh Administration

5

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 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.

3 AIR 2016 SC 3525

4 2017(5) SCALE 428

5 (2009) 9 SCC 1

13

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 pregnancy to be terminated in its

23-24 weeks, particularly such termination of

pregnancy, as per the Medical Board report

would be hazardous to the life of the victim.

However, keeping in view 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 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.

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 necessary medical

cover in light of the direction made above.

14

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 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:

(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, per month in the

account of the victim from May, 2017.

(iii)If respondent 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.

(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 with the records of the

present case and one copy of the conclusive

medical report will be transmitted to

15

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 the

Medical Board, to respondent No.4.”

12.The High Court decided the matter on

26

th

April, 2017. When the said order was challenged,

the present appeal was taken up on 3

rd

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 of the High Court. Though the Union of

India is not a party, Mr. P.S. Narasimha 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 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. Narasimha and Mr. Tushar Mehta

have submitted that a member from the Non

Governmental Organization, namely,

16

Koshish-TISS, the respondent No.5 hereing,

should accompany the petitioner to Delhi. As

far as the travel is concerned, Mr. Narasimha

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 petitioner can be examined by the Medical

Board at AIIMS latest by 6

th

May, 2017.

The report of the Medical Board shall be

produced before this Court and we would also

request Mr. Narasimha and Mr. Mehta to

assist the Court on the issue and also to have

some discussion with the doctors, for we are

concerned with saving a life of a destitute

woman. As we are inclined to think that 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 of

life and all efforts are to be made to sustain it.”

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 fetus. In view of the said report,

the Court on 9

th

May, 2017, directed as follows:

17

“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 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 of

India in this regard.

Learned counsel for the petitioner

submitted that the doctors 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,

learned Additional Solicitor General submitted

that she will be given the treatment graph by

10.05.2017.

The controversy does not end here.

Learned counsel for 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 Code of Criminal

Procedure by the State of Bihar.

Apart from the above submission, we are

obligated to direct the State of Bihar 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 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

18

condition of the petitioner is not further

jeopardized.

Learned counsel for the petitioner is

granted liberty to file an 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.

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 get the

compensation under the said Scheme and,

therefore, the petitioner shall be paid a sum of

Rs.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 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 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

19

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

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 the husband had

abandoned her to her fate and preferred a divorce

petition, there was no justification to obtain the consent

of the father or 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 no

20

uncertain terms to terminate her pregnancy as she had

been raped and an F.I.R. has been lodged, it was the

obligation of the competent authorities of the 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 failed to appreciate

the spirit of the Act and has treated it as an adversarial

litigation and passed the order which not only

unsustainable in law but also projects total lack of

sensitivity.

15.Pyramiding the submission for grant of

compensation from the State, learned counsel would

contend that when the appellant had 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

21

canvass that when the statutory function is not carried

out and the fundamental choice which is available to the

appellant in law is totally curtailed and scuttled, 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 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

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

22

entitled to get compensation. To buttress the said

submission, she has commended us to the authorities in

Nilabati Behera v. State of Orissa

6

, D.K. Basu v.

State of West Bengal

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 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. In essence, her

submission 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

6 (1993) 2 SCC 746

7 (1997) 1 SCC 416

8 (2000) 2 SCC 465

23

which the Act was enacted by the Parliament. The

Statement of Objects and Reasons of the Act 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 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

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 gravely ill or

dying pregnant women whose pregnant uterus

have been 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 and, sometimes, life.

The proposed measure which seeks to liberalise

certain existing provisions relating to termination

of pregnancy has been conceived (1) as a health

measure–when there is danger to life or risk to

physical 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 woman, etc.; and (3) eugenic

grounds–where there is substantial risk that the

child, if born, would suffer from deformities and

diseases.”

24

18.The aforesaid makes it absolutely clear that 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 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 "guardian" to mean a person having the care of

the person of a 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’.

20.Section 3 stipulates that when pregnancy may be

terminated by the registered medical practitioners. It

reads as follows:

25

“Section 3. When pregnancies may be

terminated by registered medical

practitioners.—(1) Notwithstanding anything

contained in the Indian Penal Code (45 of 1860),

a registered medical practitioner shall not be

guilty of any 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

pregnancy may 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 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 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.

Explanation 1.—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 failure of any device or method used

26

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 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 years, is a

mentally ill person, shall be terminated except

with the consent in writing of her guardian.

(b) Save as otherwise provided in C1ause (a), no

pregnancy shall be terminated except with the

consent of the pregnant woman.”

[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 opinion

in good faith, that the continuance of the pregnancy

would involve a risk to the life of the pregnant woman or

of grave injury to her physical 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

27

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 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 of a minor, or a major who is mentally ill

person. The opinion to be formed by the medical

practitioners is to be in good faith.

22.In the instant case, the gravamen 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

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

28

was taken to PMCH. At that time, she was 13 weeks and

6 days pregnant. In the midst of 18

th

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, where 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, 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

been going through could have been avoided. Learned

counsel also criticized the approach of the High Court in

29

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 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 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 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

30

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 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:

“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 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

Chairperson, as the Government may specify

from time to time.”

31

24.The Medical Termination of Pregnancy Regulations,

2003 (for short, ‘the Regulations’) deals with various

aspects. Regulation 3 provides for form of certifying

opinion or opinions. It stipulates that where one

registered medical practitioner forms or not less than two

registered medical practitioners form such opinion as is

referred to in sub-section (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 terminates

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

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 the hospital or owner

32

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 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:

“*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

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 appropriate:-

33

(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 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 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 to her physical or mental health.

Place….

Date…..

Signature of the Registered

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

34

referred to Explanation 1 which includes 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 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 (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 & Haryana ruled that it was in the best interests

35

of a mentally retarded 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,

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 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:

36

“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 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 choices is also a dimension

of “personal liberty” as understood under

Article 21 of the Constitution of India. It 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

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 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 of a pregnancy is only permitted

when the conditions specified in the applicable

statute have been fulfilled. Hence, the

provisions of the MTP Act, 1971 can also be

37

viewed as reasonable restrictions that have

been placed on the exercise of reproductive

choices.”

29.Explaining the provision of the Act, the Court

opined that ordinarily a pregnancy can be terminated

only when a medical practitioner 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 for terminating 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 the pregnancy has been contemplated

when the same is the result of a rape or a failure of birth

control methods, since both of these eventualities have

been equated with a grave injury to the mental health of

38

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 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:

“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 Trust for

Welfare of Persons with Autism, Cerebral Palsy, Mental

Retardation and Multiple Disabilities Act, 1999.

Analysing the provision of Act. The Court opined that

while a guardian can make decisions on behalf of a

“mentally ill person” as per Section 3(4)(a) of the 1971

39

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.

32.The three-Judge Bench proceeded to address the

‘best interest’ of the victim and invocation of the doctrine

of parens 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

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 as guardians or the society in general. It

is evident that the woman in question will

need care and assistance which will in turn

entail some costs. However, that cannot be a

ground for denying the exercise of reproductive

rights.”

33.After so stating, the Court adverted to the facts of

the case 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

40

‘substituted judgment’ test, which requires the Court to

step into the shoes of a person who is considered to be

mentally incapable and attempt 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 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 of living in

normal social conditions even though they may need

some supervision and assistance from time to time.

34.The Court referred to t he United Nations

Declaration on the Rights of Mentally Retarded Persons,

41

1971 [GA Res 2856 (XXVI) of 20-12-1971] and relied on

principle No.7 of the same. Principle No. 7 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 for that 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.”

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

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

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

42

abortions on mentally retarded persons. [See

generally: Elizabeth C. Scott, “Sterilization of

Mentally 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 of

our Constitution.

It is also pertinent to note that a condition of

“mental retardation” 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, 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:

“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 reasoned that

proceeding with an abortion at such a late

stage (19-20 weeks of gestation period) poses

43

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 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 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 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

9 2017 (8) SCALE 112

44

is administered psychiatry 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 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.

40.In this context, we may refer with profit to the

recent decision rendered in X v. Union of India (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 weeks and endangers

45

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.”

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 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 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 be permitted due to this

reason.”

On a careful reading of the aforesaid decision, we do

not have slightest hesitation in our mind that the facts in

46

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 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 24

th

week. What weighed with the Court 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 to it.

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

47

which was constituted as per the direction of this Court

on 3

rd

May, 2017. 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.

44. In Mehmood Nayyar Azam v. State of

Chhattisgarh

10

, the Court has observed that the word

“torture” in its denotative concept 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 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

10 (2012) 8 SCC 1

48

appellant instead of delaying the process. That apart, as

is seen, 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.

45.In Nilabati Behera (supra), Justice J.S. Verma, (as

His Lordship then was), opined thus:

“‘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

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 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 the remedy in public law

49

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, 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

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 of fundamental

rights, it does so under the public law by way

of penalising the wrongdoer and fixing the

liability for the public 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

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 rights available to the

50

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, 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. 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 Criminal Procedure.”

48.In Hardeep Singh v. State of M.P.

12

, though the

High Court had granted compensation of Rs. 70,000/-,

this Court, while concurring with the opinion that related

to justification of compensation, enhanced the

compensation by holding thus:

“Coming, however, to the issue of

compensation, we find that in the light of the

11 (2006) 3 SCC 178

12 (2012) 1 SCC 748

51

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 the

facts and circumstances of the case, we feel

that a sum 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

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 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 activity cannot be

equated with the exercise of sovereign power.

The employees of the Union of India 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

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

52

pressed into aid. Moreover, we are dealing with

this case under the public law domain and 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 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 others

13

, the petitioners therein were

arrested in violation of the mandate of law under Section

41A of the Code of Criminal Procedure and the judgment

of this Court rendered in D.K. Basu (supra). The

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 the petitioners, a doctor and

a practising advocate has been seriously

13 (2016) 11 SCC 703

53

jeopardised. Dignity, as has been held in

Charu Khurana v. Union of India, (2015) 1 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. When the

individual liberty is curtailed in an unlawful

manner, the victim is likely to feel more

anguished, agonised, shaken, perturbed,

disillusioned and emotionally torn. It is an

assault on his/her identity. The said identity is

sacrosanct under the Constitution. Therefore,

for curtailment of liberty, requisite norms 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 of accountability

to law on the ventilator. 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 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.”

We are compelled to say so as liberty

which is basically the splendour of beauty of

life and bliss of growth, cannot be allowed to

54

be frozen in such a contrived winter. That

would tantamount to comatosing of liberty

which is the strongest pillar of democracy.”

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 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

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

55

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 needed is promptitude.

54.This Court had earlier directed that she 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 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. 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. We have so directed as we want that money to

56

be properly kept and appropriately 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.

55.Having said so, it is necessary to state that the

learned singe 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 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.

57

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 should not be made liable

because of the fault of the Court. The principle of actus

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.

Nayak

14

, Sabyasachi Mukharji, J. (as His Lordship 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 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 of those Tribunals,

if I 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."

14 (1988) 2 SCC 602

15 (1871) LR 3 PC 465 : 17 ER 120

58

The aforesaid principle despite its broad

connotation is not attracted to the obtaining factual

matrix inasmuch we have granted compensation 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 of

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, including

the safeguarding of the function of 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.

59

58.The legislative intention of 1971 Act and the

decision in Suchita 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

th

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 completion

of the period of nine months from 7

th

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 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

60

consent by a guardian in the case of major should not be

over emphasized.

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.

...............................................J.

[Dipak Misra]

..............................................J.

[Amitava Roy]

..............................................J.

[A.M. Khanwilkar]

New Delhi;

August 17, 2017.