This article aims to explore certain infirmities in a recent proceeding before the Gujarat High Court, with regard to a writ petition filed under Article 226. The petition sought the medical termination of pregnancy of a minor, who is a rape victim, as per reports from LiveLaw.
The honourable presiding judge, is reported to have orally remarked about the possibility of a compromise being reached between the petitioner and the accused instead of terminating the pregnancy. The court also directed the production of the accused to explore ‘possibilities. The court ruled out the chances of a compromise when the accused revealed that he was married and his wife was expecting.[1] The advocate for the petitioner had stated that he had already talked to the accused and no compromise could be reached, and how if a compromise could be reached, it would ‘save three lives’. The Assistant Public Prosecutor for the state had mentioned that although the inclination of the court to seek a compromise was ‘pragmatic’, it would be viewed adversely.[2]
Something about the entire course of events that strikes one immediately, is the priority given to the accused with regard to the pregnancy, and the relegation of the pregnant victim’s needs to the back benches. It needs to be noted that such gratuitous pragmatism by the honourable court is not mandated under any law. While reading into the provisions of the Medical Termination of Pregnancy Act, 1971 (‘the MTP Act’), the rights of unmarried women to terminate pregnancy, the Honourable Supreme Court stated thus;
“The decision to have or not to have an abortion is borne out of complicated life circumstances, which only the woman can choose on her own terms without external interference or influence. Reproductive autonomy requires that every pregnant woman has the intrinsic right to choose to undergo or not to undergo abortion without any consent or authorization from a third party.”[3]
The matter of a compromise between a rape victim and the accused with regard to the fate of the victim’s pregnancy has never been envisaged under any legislation or judgement. In fact the entire idea of a compromise between a victim and the accused in rape cases has been criticized by legal scholars such as Professor Kalpana Kannabiran who finds such compromises to be a removal of ‘any articulation of violence from the crime of rape’.[4] In the instant case, the proactiveness shown by the court and officers of the court to reach a ‘compromise’ seem to not just ignore the violence of the crime, but seems to be forgetting that the pregnancy is a result of the crime itself and succumbs to the moral panic surrounding abortion.
The MTP Act, as it applies in the instant scenario, allows for termination of a foetus up to 24 weeks for minors and victims of rape, among other categories. After 24 weeks, termination is allowed only if substantial foetal anomalies are diagnosed by a medical board.[5] When a victim has approached the court under Article 226 to terminate pregnancy caused by rape, it seems that the law confers only few responsibilities on the court; to duly appreciate the effect the pregnancy would have on the woman’s health, and either allow termination based on the opinion of a medical board or disallow it, allowing the petitioner to appeal to the Supreme Court. This can be gleaned from the Statement of Objects and Reasons of the 2021 amendment to the MTP Act; “Considering the need and demand for increased gestational limit under certain specified conditions and to ensure safety and well-being of women, it is proposed to amend the said Act”.[6] In no way, form or manner, is any kind of compromise recommended in the MTP Act or its amendment.
In addition, the rape of a minor invokes the stringent provisions of the Protection of Children from Sexual Offences Act, 2012, which the accused is charged with in this case as per reports from the Indian Express. When the provisions of the POCSO Act are framed to protect the interests of the child to such an extent that while testifying, the child and accused are not even permitted to see each other, it does not appeal to reason why it is believed that a compromise could be reached between the accused and the victim or her representatives with regard to a pregnancy caused as a result of an offence under the same act.
One also wonders how the lives of three are saved if a compromise is reached as per the victim’s lawyer. The High Court is currently only dealing with a writ petition with regard to the termination of pregnancy. One believes that an officer of the court would not and has not suggested a compromise with regard to the case itself and not the termination of pregnancy. The case itself cannot be settled through compromise as it is a non-compoundable offence. Even the 2021 judgement of the Supreme Court which allowed High Courts to quash criminal proceedings before it regarding non compoundable offences through Section 482 of the CrPC allowed only limited powers conditional on the nature of the offence.[7] In addition, there are judgements such as from the Punjab and Haryana High Court which have unequivocally stated that “offences under the POCSO Act, which is a special statute, cannot be quashed on the basis of any compromise or matrimony between the accused and the prosecutrix.”[8] In this background, no amount of mental gymnastics allows one to understand how a compromise could save the lives of three as the petition is only with regard to termination of pregnancy. Neither a compromise leading to, ostensibly, keeping of the baby nor a termination is something that ‘saves the lives of three’ and such a ‘pragmatic’ metric should not be taken into consideration either. Termination should only depend on choice and well-being of the concerned woman.
Whereas it is important to note that here compromise was sought with regard to pregnancy and not the case itself, such suggestions from constitutional courts of high stature does not inspire public confidence in the judiciary. Such suggestions are a result of paternalistic attitudes of courts commonly seen in cases of gender-based violence. In Aparna Bhat v State of Madhya Pradesh, the apex court had severely criticised absurd bail conditions being imposed such as tying of rakhi by the victim on the accused. In the case of Samuel v Inspector of Police, a case of rape where the victim was a minor and became pregnant was referred to mediation by the High Court of Madras as the accused agreed to marry her.[9] Another case of rape of a minor was referred to mediation by the Madras High Court in the case of Mohan v State.[10] Justice Ravindra Bhat in Aparna Bhat v State of Madhya Pradesh, one of the most nuanced and sensitively written judgements of recent times, laid down certain guidelines to be followed by courts in cases concerning gender related offences. One such guideline proscribes courts from suggesting compromises while adjudicating gender related crimes. It reads as follows;
“The courts while adjudicating cases involving gender related crimes, should not suggest or entertain any notions (or encourage any steps) towards compromises between the prosecutrix and the accused to get married, suggest or mandate mediation between the accused and the survivor, or any form of compromise as it is beyond their powers and jurisdiction.”[11]
While in the instant case the Honourable High Court was not dealing with a criminal case, it should have taken this guideline into consideration given the fact that it is dealing with the consequence of a violent gender related crime. Such paternalistic suggestions masquerading as ‘pragmatic’ ones do not inspire faith in the judiciary. It leads to a situation where the accused are treated on par with the victims even in matters solely concerning the rights of the victim, thereby sacrificing the right to bodily autonomy on the altar of supposed practicality. The judiciary is not doing itself or the public any favours through pragmatic suggestions and should adhere to settled laws and guidelines when dealing with sensitive cases.
[1] ‘HC asks rape accused if ‘compromise’ possible, he says ‘wife pregnant’’, The Indian Express, (Ahmedabad, 16 June 2023) <https://indianexpress.com/article/cities/ahmedabad/produce-rape-accused-in-court-to-see-if-compromise-possible-gujarat-hc-judge-8665566/> accessed 19 June 2023. [2] Sparsh Upadhyay, 'Is There A Chance To Compromise?': Gujarat HC Directs Production Of Rape Accused From Jail In Minor's Pregnancy Termination Plea To Explore 'Possibilities’, (LiveLaw, 15 June 2023), <https://www.livelaw.in/high-court/gujarat-high-court/gujarat-high-court-chance-compromise-directs-production-pocso-accused-jail-minor-pregnancy-termination-plea-230722> accessed 19 June 2023. [3] SLP (Civil) No 12612 of 2022 Para 98. [4] Kalpana Kannabiran, ‘Compromise in Rape Cases: Whither Constitutional Morality?’ (Kafila, March 23 2011) <https://kafila.online/2011/03/23/compromise-in-rape-cases-whither-constitutional-morality-kalpana-kannabiran/> June 19, 2023. [5] The Medical Termination of Pregnancy Act, 1971 (Act 34 of 1971). [6] The Medical Termination of Pregnancy (Amendment) Bill, 2020 (Bill 55 of 2020). [7] SC Crl. A No. 1489 of 2012. [8] Navdeep Singh Cheema v State of Punjab, 2022 LiveLaw (PH) 257 [9] TN Crl. O.P. No. 1881/2015. [10] M.P No. 2/2014 in Crl. A No. 402/2014. [11] LL 2021 SC 168 Para 44.
Authored By: Aswin S.
Tamil Nadu National Law University
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