The Supreme Court went beyond its customary powers and legal mandate in allowing the abortion of the foetus of a minor girl who was in her 25th week of pregnancy. The girl had conceived after being raped by a doctor who had treated her for an ailment. The existing law in the country allows medical termination of pregnancy up to 20 weeks if the continuance of pregnancy poses a threat to the life or health of the pregnant woman. Section 3(2) of the Medical Termination of Pregnancy (MTP) Act of 1971 is very clear about that. A lower court in Gujarat and then the Gujarat High Court had refused permission for abortion on the basis of the existing law when the parents of the girl approached them on her behalf. On appeal, the Supreme Court appointed a three-member medical team to certify the girl’s physical and mental health and on the basis of the report, gave its permission for abortion, which has been carried out.
The apex court’s decision might be considered a humanitarian one in view of the circumstances of the case. But it is difficult to see how the court could violate the laid down law of the land even in a single case. It actually took the law into its hands and framed a procedure which is not sanctioned by the law. Courts are only expected to interpret the laws framed by the legislature, and not to exceed them. That would amount to inventing and formulating laws, which is beyond its jurisdiction. In the past, the Supreme Court has stated on occasion that it is unable to take a decision or give relief to a party because there is no enabling law passed by the legislature to support that decision, though it considers the cause brought before it genuine. It has proposed that parliament may consider the necessary legislative measure in such cases.
This should have been the right judicial attitude and position in this case too. There may be persuasive grounds for abortion in the case. But the court has set a bad precedent by making an exception, and in effect changing the law for a single person. The MTP Act has been among the most abused and misused laws in the country and it may not be a good idea to take liberties with it. Abortion laws differ among countries. In the UK, abortions are legal till 24 weeks of pregnancy. If parliament had decided to make provisions in law for situations like the Gujarat case, no one would have a reason to dispute the court’s decision.