Constitution of India, 1950
Article 226—Writ—Petition for issuance of directions by virtue of writ of mandamus to the respondents to conduct medical termination of pregnancy of petitioner, a rape victim of 14 years, who is carrying pregnancy of around 25 weeks—Victim falls under both i.e. clause (a) and (b) of the Rule 3B of Medical Termination of Pregnancy Rules, 2003 as she is a minor aged around 14 years, who is alleged to have been raped—Victim would fall under the special categories as enumerated by the Central Government under the rules notified as per the mandate of Section 3(2)(b) of MTP Act—Though the statute does not provide for termination of pregnancies over gestational age of 24 weeks except in case of detection of substantial foetal abnormalities, the provision in regard to which is Section 3(2B) of MTP Act, the extraordinary powers of the Constitutional Courts, however, have been recognized even by the Apex Court and exercised several times by the High Courts to allow termination of pregnancies even in cases where pregnancy has exceeded the limit of 24 weeks—Given the social, financial, and other factors that are immediately associated with pregnancy, an unwanted pregnancy would surely have an impact on victim’s mental health—Opinion of Medical Board is that petitioner is physically and mentally fit to undergo MTP—Informed consent of guardian of petitioner has been taken—Direction issued for termination of pregnancy and to preserve tissue sample and blood sample of foetus as the same may be necessary for DNA identification and other purposes. [Medical Termination of Pregnancy Act, 1971, Section 3; Medical Termination of Pregnancy Rules, 2003, Rule 3B]
[Paras 11 to 16]
Article 226—Power of High Courts—Article 226 of the Constitution of India empowers the High Courts to exercise its extraordinary powers to attain constitutional goal of justice to all and issue appropriate writs as well as other orders which it may deem fit in the facts and circumstances of a case—Extraordinary powers of the Court do not limit the Court only to the prayer sought before it but also give a relief beyond the relief sought.
[Para 21]
Article 226—Writ—Cases relating to medical termination of pregnancy of rape victim—Guidelines to be followed by investigating officers, in cases where pregnancy exceeds 24 weeks, which will be circulated through the Commissioner of Police to all investigating officers concerned:
i. At the time of medical examination of a victim of sexual assault, it will be mandatory to conduct a Urine Pregnancy Test, as in many cases, this Court has noticed that such test is not conducted.
ii. Upon the victim being found pregnant due to sexual assault, and in case the victim is major gives her consent and expresses her desire for conducting medical termination of pregnancy, the concerned investigating officer will ensure that on the same day, the victim will be produced before such Medical Board envisaged under Section 3 of MTP Act, which this Court has been informed is constituted in following four hospitals in Delhi: (i) All India Institute of Medical Sciences (AIIMS), New Delhi, (ii) Dr. Ram Manohar Lohia Hospital, New Delhi, (iii) Safdarjung Hospital, New Delhi, and (iv) Lok Nayak Jai Prakash Narayan Hospital, New Delhi.
iii. In case a minor victim of sexual assault is carrying pregnancy, upon the consent of her legal guardian and desire of such legal guardian for termination of pregnancy, the victim will be produced before such Board.
iv. In case a minor victim is examined by such Board, appropriate report will be placed before concerned authorities, so that if an order is being sought regarding termination of pregnancy from the Courts, the Court concerned does not lose any more time and is in a position to pass an order on the same expeditiously.
v. As per Section 3(2C) and 3(2D) of MTP Act, it is mandated that the State Government or Union Territory has to ensure that the Medical Boards are to be constituted in the hospitals. The Court is informed that such boards are not available in hospitals in each district, causing inconvenience to the Investigating Officers as well as to the victim at times who has to be taken for MTP and for further examination. Thus, State Government/Union Territory should ensure that such mandate of Section 3(2C) and 3(2D) of MTP Act, are complied with and such Boards are constituted in all Government Hospitals which have proper MTP Centres and it should be mandatory to have such Boards constituted before hand.
[Para 24.1]