IN THE SUPREME COURT OF INDIA  CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5845  OF 2009 (Arising out of S.L.P. (C) No. 17985 of 2009)    

Suchita Srivastava & Anr.                             …Appellants

Versus

Chandigarh Administration                             … Respondent  

O   R   D   E   R  

K.G. BALAKRISHNAN, CJI

1. Leave granted.  

2.  A Division Bench of the High Court of Punjab and Haryana in  

C.W.P. No. 8760 of 2009, by orders dated 9.6.2009 and 17.7.2009,  

ruled that it was in the best interests of a mentally retarded woman  

to undergo an abortion. The said woman (name withheld, hereinafter  

‘victim’) had become pregnant as a result of an alleged rape that  

took  place  while  she  was  an  inmate  at  a  government-run  welfare  

institution  located  in  Chandigarh.  After  the  discovery  of  her  

pregnancy, the Chandigarh Administration, which is the respondent in  

this case, had 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  had  the  opportunity  to  peruse  a  preliminary  medical

opinion and chose to constitute an Expert Body consisting of medical  

experts and a judicial officer for the purpose of a more thorough  

inquiry into the facts. In its order dated 9.6.2009, the High Court  

framed a comprehensive set of questions that were to be answered by  

the Expert Body. In such cases, the presumption is that the findings  

of the Expert Body would be given due weightage in arriving at a  

decision.  However,  in  its  order  dated  17.7.2009  the  High  Court  

directed the termination of the pregnancy in spite of the Expert  

Body’s  findings  which  show  that  the  victim  had  expressed  her  

willingness to bear a child.  

3. Aggrieved by these orders, the appellants moved this Court and  

the second appellant – Ms. Tanu Bedi, Adv. appeared in person on  

20.7.2009 and sought a hearing on an urgent basis because the woman  

in question had been pregnant for more than 19 weeks at that point  

of  time.  We  agreed  to  the  same  since  the  statutory  limit  for  

permitting the termination of a pregnancy, i.e. 20 weeks was fast  

approaching.  We  issued  notice  to  the  Chandigarh  Administration,  

pursuant to which Mr. Anupam Gupta, Adv. appeared before us and made  

oral submissions on behalf of the respondent. In the regular hearing  

held  on  21.7.2009,  both  sides  presenting  compelling  reasons  in  

support of their respective stands. Mr. Colin Gonsalves, Sr. Adv.  

also  appeared  on  behalf  of  an  intervenor  in  support  of  the  

Chandigarh  Administration’s  stand.  After  hearing  the  counsel  at  

length we had also considered the opinions of some of the medical  

experts  who  had  previously  examined  the  woman  in  question.  

Subsequent  to  the  oral  submissions  made  by  the  counsel  and  the  

medical experts, we had granted a stay on the High Court’s orders

thereby ruling against the termination of the pregnancy.     

4.  The  rationale  behind  our  decision  hinges  on  two  broad  

considerations. The first consideration is whether it was correct on  

part  of  the  High  Court  to  direct  the  termination  of  pregnancy  

without the consent of the woman in question. This was the foremost  

issue since a plain reading of the relevant provision in the Medical  

Termination of Pregnancy Act, 1971 clearly indicates that consent is  

an essential condition for performing an abortion on a woman who has  

attained the age of majority and does not suffer from any ‘mental  

illness’. As will be explained below, there is a clear distinction  

between ‘mental illness’ and ‘mental retardation’ for the purpose of  

this statute. The second consideration before us is that even if the  

said  woman  was  assumed  to  be  mentally  incapable  of  making  an  

informed decision, what are the appropriate standards for a Court to  

exercise  ‘Parens  Patriae’  jurisdiction?  If  the  intent  was  to  

ascertain the ‘best interests’ of the woman in question, it is our  

considered opinion that the direction for termination of pregnancy  

did not serve that objective. Of special importance is the fact that  

at the time of hearing, the woman had already been pregnant for more  

than 19 weeks and there is a medico-legal consensus that a late-term  

abortion can endanger the health of the woman who undergoes the  

same.    

5. Before explaining both of the above-mentioned considerations at  

length,  it  will  be  useful  to  present  an  overview  of  the  fact-

situation which led to the present proceeding. The woman in question  

is an orphan who had been abandoned by her parents at an early age  

and  subsequently  she  had  been  under  the  guardianship  of  the

Missionaries  of  Charity,  New  Delhi.  Thereafter,  she  had  been  

admitted in the Government Institute for Mentally Retarded Children  

located in Sector 32, Chandigarh and was later on brought to the  

‘Nari Niketan’ a welfare institution in Sector 26, Chandigarh. On  

13.3.2009,  she  was  shifted  to  ‘Ashreya’  –  a  newly  established  

welfare  institution.  Both  ‘Nari  Niketan’  and  ‘Ashreya’  are  

government-run  institutions  run  by  the  Chandigarh  Administration  

which fall under the administrative control of the Director, Social  

Welfare and the Director-Principal, Government Medical College and  

Hospital (GMCH), Sector 32, Chandigarh respectively.   

6. On 16.5.2009, a medical social worker and a staff nurse working  

at ‘Ashreya’ observed that the victim was showing signs of nausea  

and had complained about pain in her lower abdomen in addition to  

disclosing  the  fact  that  she  had  missed  her  last  two  menstrual  

periods. Acting on their own initiative, the medical social worker  

and the staff nurse conducted a pregnancy test with a urine sample  

and found it to be positive. Following this development, a medical  

board  consisting  of  two  gynaecologists  and  a  radiologist  was  

constituted  on  18.5.2009.  The  gynaecologists  then  examined  the  

victim in a clinical environment and concluded that she had been  

pregnant for 8-10 weeks at the time. The radiologist also confirmed  

the fact of pregnancy on the basis of an ultrasound examination and  

recorded a gestation of approximately 9 weeks on the same day.  

7. After the discovery of the pregnancy, the concerned authorities  

had informed the Chandigarh Police who filed FIR No. 155 (dated  

18.5.2009) under Sections 376 and 120B of the Indian Penal Code at  

the Police Station located in Sector 26, Chandigarh. Subsequently,

an  ossification  test  conducted  on  the  victim  on  20.5.2009  had  

indicated  her  bone  age  to  be  around  19-20  years.  The  Director-

Principal of the GMCH thereafter constituted a three member medical  

board  on  25.5.2009  which  was  headed  by  the  Chairperson  of  the  

Department of Psychiatry in the said hospital. Their task was to  

evaluate the mental status of the victim and they opined that the  

victim’s condition was that of ‘mild mental retardation’. Thereafter  

another multi-disciplinary medical board was constituted by the same  

authority  which  consisted  of  a  gynaecologist,  a  radiologist,  a  

paediatrician and a psychiatrist. This board was asked ‘to submit  

its   considered opinion as to the consequences of continuation of  

pregnancy and the capability of the victim to cope with the same’.  

Board’s opinion was submitted on 27.5.2009, which recommended the  

termination of the victim’s pregnancy.  

8. Since there was no clear statutory basis for proceeding with the  

abortion,  the  Chandigarh  Administration  moved  the  High  Court  of  

Punjab and Haryana seeking a judicial opinion on the said matter. In  

its  order  dated  9.6.2009  the  High  Court  had  taken  note  of  the  

opinion given by the multi-disciplinary medical board on 27.5.2009.  

However, as a measure of abundant caution the High Court directed  

the authorities to constitute an Expert Body consisting of medical  

experts and framed a set of questions to be answered by this Body.  

The High Court stressed on the need for ensuring that this Expert  

Body would be independent from the administrative control or any  

form of influence by the Chandigarh Administration. The intention  

was that the Expert Body’s findings would enable the High Court to  

ascertain  the  ‘best  interests’  of  the  woman  in  question.  In

pursuance of these directions, the Director of the Post Graduate  

Institute  of  Medical  Education  and  Research  (PGIMER),  Chandigarh  

constituted  an  expert  body  comprising  of  

(1)  Dr.  Ajit  Awasthi,  Department  of  Psychiatry  (2)  Dr.  Savita  

Kumari,  Department  of  Internal  Medicine  (3)  Dr.  Vanita  Jain,  

Department of Obstetrics and Gynaecology, and (4) Dr. Meenu Singh,  

Department of Paediatrics. The High Court had also directed Smt. Raj  

Rahul Garg, Additional District and Sessions Judge, Chandigarh to  

act as the member-cum-coordinator of the Expert Body.   

9. At this juncture, it would be pertinent to refer to the Expert  

Body’s findings which were duly recorded by the High Court in its  

order dated 17.7.2009. The text of the same is reproduced below:  

Question framed by High Court in its order dated 9.6.2009 in C.W.P.  

8760 of 2009

Expert Body’s findings  

(i)The mental condition of the retardee

She suffers from mild to moderate mental retardation

(ii)  Her  mental  and  physical  condition  and  ability  for  self-

sustenance

A case of mild to moderate mental retardation,  

Pregnant: Single live foetus corresponding to 13 weeks 3 days +/- 2  

weeks, Post-operative scars for spinal surgery, HbsAG positive.

Her  mental  status  affects  her  ability  for  independent  socio-

occupational  functioning  and  self-sustenance.  She  would  need  

supervision and assistance.

(iii) Her understanding about the distinction between the child born  

out of and outside the wedlock as well as the social connotations  

attached thereto.

As per her mental status, she is incapable of making the distinction  

between a child born before or after marriage or outside the wedlock  

and  is  unable  to  understand  the  social  connotations  attached  

thereto.

(iv) Her capability to acknowledge the present and consequences of  

her own future and that of the child she is bearing

She knows that she is bearing a child and is keen to have one.  

However, she is unable to appreciate and understand the consequences  

of her own future and that of the child she is bearing.

(v) Her mental and physical capacity to bear and raise a child

She is a young primigravida with abnormalities of gait and spinal  

deformity and Hepatitis B surface antigen positive status. However,  

she has adequate physical capacity to bear and raise a child.   

She is a case of mild to moderate mental retardation which often  

limits the mental capacity to bear and raise a child in the absence  

of adequate social support and supervision

(vi) Her perception about bringing up a child and the role of an  

ideal mother

She has grossly limited perception about bringing up a child and the  

role of an ideal mother

(vii)  Does  she  believe  that  she  has  been  impregnated  through  

unvolunteered sex?

She has a limited understanding of the sexual act and relationship

and even the concept of getting pregnant. She did not volunteer for  

sex and did not like the sexual act.  

(viii) Is she upset and/or anguished on account of the pregnancy  

alleged to have been caused by way of rape/un-willing sex?

She has no particular emotions on account of the pregnancy alleged  

to have been caused by way of rape/un-willing sex. She is happy with  

the idea that she has a baby inside her and looks forward to seeing  

the same.  

(ix) Is there any risk of injury to the physical or mental health of  

the victim on account of her present foreseeable environment?

Her internal environment of pregnancy does not pose any particular  

risk of injury to the physical health of the victim. Her mental  

health can be further affected by the stress of bearing and raising  

a child.  

Her  external environment  in terms  of her  place of  stay and  the  

support available thereof is difficult to comment on because of our  

lack of familiarity with the same. She definitely needs a congenial  

and supportive environment for her as well as for the safety of the  

pregnancy.

(x) Is there any possibility of exerting undue influence through any  

means on the decision-making capability of the victim?

Her  mental  state  indicates  high  suggestibility  because  of  her  

reliance on rote memory and imitative behaviour for learning. Being  

highly suggestible her decision-making can be easily influenced.  

(xi) Do the overall surroundings provide reasonable space to the  

victim  to  indulge  in  independent  thinking  process  and  take  firm  

decisions on the issues vital to her life prospects?

We are not familiar with her overall surroundings, hence unable to  

comment.

(xii)  What  is  the  possible  nature  of  the  major  spinal  surgery  

alleged to have been undergone by the victim during her childhood?  

Does it directly or indirectly relate to the bony abnormalities of  

the  victim?  Can  such  abnormalities  have  a  genetic  basis  to  be  

inherited by the baby?

As per the neurosurgeon, spinal surgery during childhood could have  

been due to neural tube defect or spinal cord tumour. This could  

have been confirmed by MRI tests, but the same could not be carried  

through as those were considered to be potentially hazardous for the  

foetus.  There  is  no  history  /  records  available  for  the  spinal  

surgery, hence, the safety profile issues relevant for the patient  

undergoing MRI like the possibility of use of any mental screws to  

fix the spine wherein MRI can be hazardous cannot be definitely  

commented upon in this case. The neural tube defect in the patient  

can lead to an increased chance of neural tube defect in the baby.  

However, these defects can be detected by blood tests of the mother  

and ultrasound. Presence of neural tube defect in the parent is not  

an indication for termination of pregnancy. It is not possible to  

comment on the inheritance of spinal cord tumours without knowing  

the exact nature of the tumour.    

(xiii) Is there a genuine possibility of certain complications like  

chances of abortion, anaemia, hypertension, prematurity, low birth  

weight  baby,  foetal  distress  including  chances  of  anaesthetic  

complications, if the victim in the present case is permitted to  

carry on the pregnancy?

The  possibility  of  complications  like  abortion,  hypertension,  

prematurity, low birth weight baby and foetal distress are similar  

to any pregnancy in a woman of this age group.   

Due  to the  spinal abnormality  and gait  defect she  has a  higher  

chance  of  operative  delivery  and  associated  anaesthetic  

complications. Spinal and gait abnormalities are not an indication  

for termination of pregnancy.    

Pregnancy in women with Hepatitis B surface antigen positive status  

is  usually  uneventful.  The  prenatal  transmission  from  mother  to  

infant can be prevented by giving immunoprophylaxis to the neonate.  

Acute or chronic Hepatitis B infection during pregnancy is not an  

indication for termination of pregnancy.  

(xiv) What can be the most prudent course to be followed in the best  

interest of the victim?

Her physical status poses no major physical contraindications to  

continue with the pregnancy. The health of foetus can be monitored  

for any major congenital defects. Her mental state indicates limited  

mental  capacity  [intellectual,  social  adaptive  and  emotional  

capacity] to bear and raise the child. Social support and care for  

both  the  mother  and  the  child  is  another  crucial  component.  

Therefore, any decision that is taken keeping her best interests in  

mind as well as those of her unborn child – has to be based on the  

holistic  assessment  of  physical,  psychological  and  social  

parameters.  

TERMINATION OF PREGNANCY CANNOT BE PERMITTED WITHOUT THE CONSENT OF  

THE VICTIM IN THIS CASE  

10.  Even  though  the  Expert  Body’s  findings  were  in  favour  of  

continuation of the pregnancy, the High Court decided to direct the  

termination of the same in its order dated 17.7.2009. We disagree  

with  this  conclusion  since  the  victim  had  clearly  expressed  her  

willingness  to  bear  a  child.  Her  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. In this regard we must  

stress upon the language of Section 3 of the Medical Termination of  

Pregnancy  Act,  1971  [Hereinafter  also  referred  to  as  ‘MTP  Act’]  

which reads as follows:-   

“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 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  a  pregnancy  would  

involve such risk of injury to the health as is mentioned in sub-

section (2), account may be taken of 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 clause (a), no pregnancy shall be  

terminated except with the consent of the pregnant woman.”     

11. A plain reading of the above-quoted provision makes it clear  

that Indian law allows for abortion only if the specified conditions  

are met. When the MTP Act was first enacted in 1971 it was largely  

modelled on the Abortion Act of 1967 which had been passed in the  

United Kingdom. The legislative intent was to provide a qualified  

‘right to abortion’ and the termination of pregnancy has never been  

recognised as a normal recourse for expecting mothers. 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 viewed as reasonable  

restrictions that have been placed on the exercise of reproductive  

choices.     

12. A perusal of the above mentioned provision makes it clear that  

ordinarily  a  pregnancy  can  be  terminated  only  when  a  medical  

practitioner is satisfied that a ‘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’ [as per Section 3(2)(i)] 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’ [as per Section 3(2)(ii)]. 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.  The  explanations  to  this  provision  have  also

contemplated  the  termination  of  pregnancy  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 a woman. In all such circumstances, the consent of  

the pregnant woman is an essential requirement for proceeding with  

the termination of pregnancy. This position has been unambiguously  

stated in Section 3(4)(b) of the MTP Act, 1971. The exceptions to  

this rule of consent have been laid down in Section 3(4)(a) of the  

Act. Section 3(4)(a) lays down that when the pregnant woman is below  

eighteen years of age or is a ‘mentally ill’ person, the pregnancy  

can  be  terminated  if  the  guardian  of  the  pregnant  woman  gives  

consent for the same. The only other exception is found in Section  

5(1) of the MTP Act which permits a registered medical practitioner  

to proceed with a termination of pregnancy when he/she is of an  

opinion formed in good faith that the same is ‘immediately necessary  

to save the life of the pregnant woman’. Clearly, none of these  

exceptions are applicable to the present case.  

13. In the facts before us, the State could claim that it is the  

guardian of the pregnant victim since she is an orphan and has been  

placed in government-run welfare institutions. However, the State’s  

claim to guardianship cannot be mechanically extended in order to  

make  decisions  about  the  termination  of  her  pregnancy.  An  

ossification test has revealed that the physical age of the victim  

is around 19-20 years. This conclusively shows that she is not a  

minor.  Furthermore,  her  condition  has  been  described  as  that  of  

‘mild  mental  retardation’  which  is  clearly  different  from  the

condition  of  a  ‘mentally  ill  person’  as  contemplated  by  Section  

3(4)(a) of the MTP Act. It is pertinent to note that the MTP Act had  

been  amended  in  2002,  by  way  of  which  the  word  ‘lunatic’  was  

replaced by the expression ‘mentally ill person’ in Section 3(4)(a)  

of the said statute. The said amendment also amended Section 2(b) of  

the MTP Act, where the erstwhile definition of the word ‘lunatic’  

was  replaced  by  the  definition  of  the  expression  ‘mentally  ill  

person’ which reads as follows:  

“2(b)  ‘mentally  ill  person’  means  a  person  who  is  in  need  of  

treatment  by  reason  of  any  mental  disorder  other  than  mental  

retardation.”  

14. The 2002 amendment to the MTP Act indicates that the legislative  

intent was to narrow down the class of persons on behalf of whom  

their  guardians  could  make  decisions  about  the  termination  of  

pregnancy.  It  is  apparent  from  the  definition  of  the  expression  

‘mentally  ill  person’  that  the  same  is  different  from  that  of  

‘mental retardation’. A similar distinction can also be found in the  

Persons with Disabilities (Equal Opportunities, Protection of Rights  

and Full Participation) Act, 1995. This legislation treats ‘mental  

illness’  and  ‘mental  retardation’  as  two  different  forms  of  

‘disability’. This distinction is apparent if one refers to Section  

2(i), (q) and (r) which define ‘disability’, ‘mental illness’ and  

‘mental retardation’ in the following manner:  

“2(i) ‘disability’ means – (i) blindness; (ii) low vision; (iii)

leprosy-cured;  (iv)  hearing  impairment;  (v)  locomotor  disability;  

(vi) mental retardation; (vii) mental illness;  

2(q) ‘mental illness’ means any mental disorder other than mental  

retardation  

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.”  

15.  The  same  definition  of  ‘mental  retardation’  has  also  been  

incorporated in Section 2(g) of  The National Trust for Welfare of  

Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple  

Disabilities Act, 1999. These legislative provisions clearly show  

that persons who are in a condition of ‘mental retardation’ should  

ordinarily be treated differently from those who are found to be  

‘mentally ill’. While a guardian can make decisions on behalf a  

‘mentally ill person’ as per Section 3(4)(a) of the MTP Act, the  

same cannot be done on behalf of a person who is in a condition of  

‘mental retardation’. The only reasonable conclusion that can be  

arrived  at  in  this  regard  is  that  the  State  must  respect  the  

personal  autonomy  of  a  mentally  retarded  woman  with  regard  to  

decisions about terminating a pregnancy. It can also be reasoned  

that while the explicit consent of the woman in question is not a  

necessary  condition  for  continuing  the  pregnancy,  the  MTP  Act  

clearly lays down that obtaining the consent of the pregnant woman  

is indeed an essential condition for proceeding with the termination  

of a pregnancy. As mentioned earlier, in the facts before us the  

victim has not given consent for the termination of pregnancy. We

cannot permit a dilution of this requirement of consent since the  

same would amount to an arbitrary and unreasonable restriction on  

the reproductive rights of the victim. We must also be mindful of  

the  fact  that  any  dilution  of  the  requirement  of  consent  

contemplated  by Section  3(4)(b) of  the MTP  Act is  liable to  be  

misused in a society where sex-selective abortion is a pervasive  

social evil.   

16. Besides placing substantial reliance on the preliminary medical  

opinions  presented  before  it,  the  High  Court  has  noted  some  

statutory  provisions  in  the  Persons  with  Disabilities  (Equal  

Opportunities,  Protection  of  Rights  and  Full  Participation)  Act,  

1995  as well  as The  National Trust  for Welfare  of Persons  with  

Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities  

Act, 1999 where the distinction between ‘mental illness’ and ‘mental  

retardation’ has been collapsed. The same has been done for the  

purpose of providing affirmative action in public employment and  

education  as  well  as  for  the  purpose  of  implementing  anti-

discrimination  measures.  The  High  Court  has  also  taken  note  of  

provisions in the IPC which lay down strong criminal law remedies  

that  can  be  sought  in  cases  involving  the  sexual  assault  of  

‘mentally  ill’  and  ‘mentally  retarded’  persons.  The  High  Court  

points  to  the  blurring  of  these  distinctions  and  uses  this  to  

support  its  conclusion  that  ‘mentally  ill’  persons  and  those  

suffering from ‘mental retardation’ ought to be treated similarly  

under the MTP Act, 1971. We do not agree with this proposition. We  

must emphasize that while the distinction between these statutory

categories  can  be  collapsed  for  the  purpose  of  empowering  the  

respective  classes  of  persons,  the  same  distinction  cannot  be  

disregarded so as to interfere with the personal autonomy that has  

been  accorded  to  mentally  retarded  persons  for  exercising  their  

reproductive rights.       

TERMINATION  OF  PREGNANCY  IS  NOT  IN  THE  ‘BEST  INTERESTS’  OF  THE  

VICTIM  

17. In the impugned orders, the High Court has in fact agreed with  

the proposition that a literal reading of Section 3 of the MTP Act  

would lead to the conclusion that a mentally retarded woman should  

give  her consent  in order  to proceed  with the  termination of  a  

pregnancy.  However,  the  High  Court  has  invoked  the  doctrine  of  

‘Parens Patriae’ while exercising its writ jurisdiction to go beyond  

the  literal  interpretation  of  the  statute  and  adopt  a  purposive  

approach.  The  same  doctrine  has  been  used  to  arrive  at  the  

conclusion that the termination of pregnancy would serve the ‘best  

interests’ of the victim in the present case even though she has not  

given her consent for the same. We are unable to accept that line of  

reasoning.   

18. The doctrine of ‘Parens Patriae’ has been evolved in common law  

and is applied in situations where the State must make decisions in  

order to protect the interests of those persons who are unable to  

take  care  of  themselves.  Traditionally  this  doctrine  has  been  

applied in cases involving the rights of minors and those persons

who have been found to be mentally incapable of making informed  

decisions for themselves. Courts in other common law jurisdictions  

have  developed  two  distinct  standards  while  exercising  ‘Parens  

Patriae’  jurisdiction  for  the  purpose  of  making  reproductive  

decisions  on  behalf  of  mentally  retarded  persons.  These  two  

standards  are  the  ‘Best  interests’  test  and  the  ‘Substituted  

judgment’ test.  

19. 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 other stakeholders such as  

guardians or 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.  

20. The application of the ‘Substituted Judgment’ test 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. This 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.  In  the  present  case  the  victim  has  been  

described as a person suffering from ‘mild mental retardation’. This  

does not mean that she is entirely incapable of making decisions for  

herself. The findings recorded by the Expert Body indicate that her  

mental age is close to that of a nine-year old child and that she is  

capable of learning through rote-memorisation and imitation. Even  

the preliminary medical opinion indicated that she had learnt to  

perform  basic  bodily  functions  and  was  capable  of  simple  

communications.  In  light  of  these  findings,  it  is  the  ‘Best  

Interests’ test alone which should govern the inquiry in the present  

case and not the ‘Substituted Judgment’ test.  

21.  We  must  also  be  mindful  of  the  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.  A  developmental  delay  in  mental  

intelligence should not be equated with mental incapacity and as far  

as possible the law should respect the decisions made by persons who  

are found to be in a state of mild to moderate ‘mental retardation’.  

22. In the present case, the victim has expressed her willingness to

carry the pregnancy till its full term and bear a child. The Expert  

body has found that she has a limited understanding of the idea of  

pregnancy  and  may  not  be  fully  prepared  for  assuming  the  

responsibilities of a mother. As per the findings, the victim is  

physically capable of continuing with the pregnancy and the possible  

risks  to her  physical health  are similar  to those  of any  other  

expecting mother. There is also no indication that the prospective  

child  may  be  born  with  any  congenital  defects.  However,  it  was  

repeatedly  stressed  before  us  that  the  victim  has  a  limited  

understanding of the sexual act and perhaps does not anticipate the  

social stigma that may be attached to a child which will be born on  

account of an act of rape. Furthermore, the medical experts who  

appeared before us also voiced the concern that the victim will need  

constant care and supervision throughout the pregnancy as well as  

for the purposes of delivery and childcare after birth. Maternal  

responsibilities do entail a certain degree of physical, emotional  

and social burdens and it was proper for the medical experts to  

gauge whether the victim is capable of handling them. The counsel  

for the respondent also alerted us to the possibility that even  

though the victim had told the members of the Expert Body that she  

was willing to bear the child, her opinion may change in the future  

since she was also found to be highly suggestible.  

23. Even if it were to be assumed that the victim’s willingness to  

bear a child was questionable since it may have been the product of  

suggestive questioning or because the victim may change her mind in  

the future, there is another important concern that should have been

weighed by the High Court. At the time of the order dated 17.7.2009,  

the victim had already been pregnant for almost 19 weeks. By the  

time  the  matter  was  heard  by  this  Court  on  an  urgent  basis  on  

21.7.2009, the statutory limit for terminating a pregnancy, i.e. 20  

weeks, was fast approaching. There is of a course a cogent rationale  

for the provision of this upper limit of 20 weeks (of the gestation  

period) within which the termination of a pregnancy is allowed. This  

is so because there is a clear medical consensus that an abortion  

performed during the later stages of a pregnancy is very likely to  

cause harm to the physical health of the woman who undergoes the  

same. This rationale was also noted in a prominent decision of the  

United States Supreme Court in Roe v. Wade, 410 US 113 (1973), which  

recognised that the right of a woman to seek an abortion during the  

early-stages of pregnancy came within the constitutionally protected  

‘right to privacy’. Even though this decision had struck down a  

statutory provision in the State of Texas which had criminalized the  

act of undergoing or performing an abortion, (except in cases where  

the pregnancy posed a grave risk to the health of the mother) it had  

also recognised a ‘compelling state interest’ in protecting the life  

of the prospective child as well as the health of the pregnant woman  

after a certain point in the gestation period. This reasoning was  

explained in the majority opinion delivered by Blackmun, J., 410 US  

113, 162-163 (1973):        

“In view of all this, we do not agree that, by adopting one theory  

of life, Texas may override the rights of the pregnant woman that  

are  at  stake.  We  repeat,  however,  that  the  State  does  have  an

important and legitimate interest in preserving and protecting the  

health of the pregnant woman, whether she be a resident of the State  

or  a  non-resident  who  seeks  medical  consultation  and  treatment  

there,  and  that  it  has  still  another  important  and  legitimate  

interest  in  protecting  the  potentiality  of  human  life.  These  

interests are separate and distinct. Each grows in substantiality as  

the woman approaches term and, at a point during pregnancy, each  

becomes ‘compelling’.  

(internal citations omitted)  

With respect to the State's important and legitimate interest in the  

health  of  the  mother,  the  ‘compelling’  point,  in  the  light  of  

present medical knowledge, is at approximately the end of the first  

trimester. This is so because of the now-established medical fact,  

(internal  citation  omitted),  that  until  the  end  of  the  first  

trimester mortality in abortion may be less than mortality in normal  

childbirth. It follows that, from and after this point, a State may  

regulate the abortion procedure to the extent that the regulation  

reasonably relates to the preservation and protection of maternal  

health. …”  

24.  In  light  of  the  above-mentioned  observations,  it  is  our  

considered opinion that the direction given by the High Court (in  

its order dated 17.7.2009) to terminate the victim’s pregnancy was  

not in pursuance of her ‘best interests’. Performing an abortion at  

such a late-stage could have endangered the victims’ physical health  

and the same could have also caused further mental anguish to the

victim since she had not consented to such a procedure. We must also  

mention  that  the  High  Court  in  its  earlier  order  had  already  

expressed  its  preference  for  the  termination  of  the  victim’s  

pregnancy  (See  Para.  38  in  Order  dated  9.6.2009)  even  as  it  

proceeded to frame a set of questions that were to be answered by a  

Expert Body which was appointed at the instance of the High Court  

itself. In such a scenario, it would have been more appropriate for  

the  High  Court  to  express  its  inclination  only  after  it  had  

considered the findings of the Expert Body.   

25. Our conclusions in this case are strengthened by some norms  

developed in the realm of international law. For instance one can  

refer to the principles contained in the United Nations Declaration  

on the Rights of Mentally Retarded Persons, 1971 [G.A. Res. 2856  

(XXVI) of 20 December, 1971] which have been reproduced below:-   

“1.  The  mentally  retarded  person  has,  to  the  maximum  degree  of  

feasibility, the same rights as other human beings.  

2. The mentally retarded person has a right to proper medical care  

and physical therapy and to such education, training, rehabilitation  

and guidance as will enable him to develop his ability and maximum  

potential.  

3. The mentally retarded person has a right to economic security and  

to a decent standard of living. He has a right to perform productive  

work or to engage in any other meaningful occupation to the fullest  

possible extent of his capabilities.  

4. Whenever possible, the mentally retarded person should live with

his own family or with foster parents and participate in different  

forms  of  community  life.  The  family  with  which  he  lives  should  

receive assistance. If care in an institution becomes necessary, it  

should be provided in surroundings and other circumstances as close  

as possible to those of normal life.  

5. The mentally retarded person has a right to a qualified guardian  

when  this  is  required  to  protect  his  personal  well-being  and  

interests.  

6.  The  mentally  retarded  person  has  a  right  to  protection  from  

exploitation, abuse and degrading treatment. If prosecuted for any  

offence, he shall have a right to due process of law with full  

recognition being given to his degree of mental responsibility.  

7. 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.”   

26. Special emphasis should be placed on Principle 7 (cited above)  

which  prescribes  that  a  fair  procedure  should  be  used  for  the  

‘restriction  or  denial’  of  the  rights  guaranteed  to  mentally  

retarded persons, which should ordinarily be the same as those given  

to  other  human  beings.  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  

October 1, 2007 and the contents of the same are binding on our  

legal system.

27.  The  facts  of  the  present  case  indeed  posed  some  complex  

questions before us. While we must commend the counsel for their  

rigorous argumentation, this case also presents an opportunity to  

confront some social stereotypes and prejudices that operate to the  

detriment of mentally retarded persons. Without reference to the  

present proceedings, we must admit to the fact that even medical  

experts  and  judges  are  unconsciously  susceptible  to  these  

prejudices. [See generally: Susan Stefan, ‘Whose Egg is it anyway?  

Reproductive  Rights  of  Incarcerated,  Institutionalized  and  

Incompetent Women’, 13 Nova Law Review 405-456 (November 1989)] We  

have  already  stressed  that  persons  who  are  found  to  be  in  

borderline,  mild  and  moderate  forms  of  mental  retardation  are  

capable of living in normal social conditions and do not need the  

intensive supervision of an institutionalised environment. As in the  

case before us, institutional upbringing tends to be associated with  

even more social stigma and the mentally retarded person is denied  

the opportunity to be exposed to the elements of routine living. For  

instance, if the victim in the present case had received the care of  

a family environment, her guardians would have probably made the  

efforts to train her to avoid unwelcome sexual acts. However, the

victim  in  the  present  case  is  an  orphan  who  has  lived  in  an  

institutional setting all her life and she was in no position to  

understand  or  avoid  the  sexual  activity  that  resulted  in  her  

pregnancy.  The  responsibility  of  course  lies  with  the  State  and  

fact-situations such as those in the present case should alert all  

of us to the alarming need for improving the administration of the  

government-run welfare institutions.  

28. It would also be proper to emphasize 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  abortions  on  mentally  retarded  persons.  [See  

generally: Elizabeth C. Scott, ‘Sterilization of Mentally Retarded  

Persons: Reproductive Rights and Family Privacy’, Duke Law Journal  

806-865 (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  (I.Q.)  and  Mental  Age  (M.A.)  which  mostly  

relate to academic abilities. It is quite possible that a person  

with  a  low  I.Q.  or  M.A.  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.   

CONCLUSION AND DIRECTIONS

29. With regard to the facts that led to the present proceeding, the  

question of whether or not the victim was capable of consenting to  

the sexual activity that resulted in her pregnancy will be addressed  

in the criminal proceedings before a trial court. An FIR has already  

been filed in the said matter and two security-guards from Nari  

Niketan are being investigated for their role in the alleged rape.  

30.  The  substantive  questions  posed  before  us  were  whether  the  

victim’s pregnancy could be terminated even though she had expressed  

her willingness to bear a child and whether her ‘best interests’  

would  be  served  by  such  termination.  As  explained  in  the  fore-

mentioned discussion, our conclusion is that the victim’s pregnancy  

cannot be terminated without her consent and proceeding with the  

same would not have served her ‘best interests’. 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

significant risks to the physical health of the victim.  Lastly,  we  

have  urged  the need to look beyond social prejudices in order to  

objectively decide whether a person who is in a condition of mild  

mental retardation can perform parental responsibilities.    

31. The findings recorded by the Expert body which had examined the  

victim indicate that the continuation of the pregnancy does not pose  

any grave risk to the physical or mental health of the victim and  

that there is no indication that the prospective child is likely to  

suffer  from  a  congenital  disorder.  However,  concerns  have  been  

expressed  about  the  victim’s  mental  capacity  to  cope  with  the  

demands  of carrying  the pregnancy  to its  full term,  the act  of  

delivering  a  child  and  subsequent  childcare.  In  this  regard,  we  

direct 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 post-natal care. Since there is an apprehension that the  

woman  in  question  may  find  it  difficult  to  cope  with  maternal  

responsibilities, the Chairperson of the National Trust for Welfare  

of  Persons  with  Autism,  Cerebral  Palsy,  Mental  Retardation  and  

Multiple Disabilities (constituted under the similarly named 1999  

Act) has stated in an affidavit that the said Trust is prepared to  

look after the interests of the woman in question which will include  

assistance with childcare. In the said affidavit, it has been stated  

that this Trust will consult the Chandigarh Administration as well  

as experts from the Post Graduate Institute of Medical Education and  

Research (PGIMER) in order to ensure proper care and supervision. If  

any grievances arise with respect to the same subject matter in the

future, the respondent can seek directions from the High Court of  

Punjab and Haryana under its writ jurisdiction.  

32. The present appeal is disposed off accordingly.    

       ……………………..…….CJI               [ K.G. BALAKRISHNAN ]

     ….…..………….…………..J.       [ P. SATHASIVAM ]  

          ….….……….……………..J.         [ B.S. CHAUHAN ]   

New Delhi; August 28, 2009.