CJI’s 2009 HC order finds resonance in SC ruling on 15-year-old’s abortion

THe sublime margaret court on th non only when refused to reopen its order allowing termination of a 30-week pregnancy of a 15-year-old Delhi girl, but also brought Chief Justice of India Surya Kant’s own jurisprudential journey full circle, as the first judge of the country reflected on how a question of reproductive autonomy and best interest of the mother came up before him 16 years ago-- only for the law to take a different course.Declining to entertain a curative plea filed by the All India Institute of Medical Sciences (AIIMS), the bench led by the CJI and also comprising Justice Joymalya Bagchi made it clear that neither the Centre nor medical institutions could step into the shoes of the individual in matters of reproductive choice. “Let us not make it a fight between the State and its citizens,” said the court on Thursday, cautioning against framing the issue as one between “an unborn child and a child”.But even as the bench reaffirmed the primacy of autonomy, the hearing turned into a moment of continuity, and regret.Recalling his tenure as a judge of the Punjab and Haryana high court, the Chief Justice told the courtroom that “the first judgment in the country in such a matter was delivered by me as a high court judge”, referring to a 2009 ruling that dealt with termination of pregnancy in a case involving a vulnerable woman.That case, like the present one, arose from a contested question as to whether the State could step in, invoking its role as parens patriae (in the best interest of people), to override a woman’s choice in matters of pregnancy. The high court was called upon to decide if continuation of pregnancy could be justified in the “best interests” of the woman, even when it ran counter to her mental and physical well-being and life circumstances.In examining that issue, the high court bench, led by Justice Kant and also including Justice AG Masih (presently a Supreme Court judge), wrestled with a conflict that has now re-emerged -- a balancing of the rights of the fetus against the dignity, bodily autonomy and future of the pregnant individual. Drawing on comparative jurisprudence and ethical principles, the 2009 ruling underscored that reproductive choice could not be displaced merely because the State claimed to act protectively.Strikingly, several facts in the 2009 case mirror the present controversy. Both involved vulnerable individuals whose capacity or circumstances heightened the risk of coercion (a mentally disabled woman lodged in a welfare institution in the 2009 case who became pregnant due to repeated rapes and a minor in the latest case); both saw State authorities stepping in to take what they described as a “protective” stance; and in both, medical and institutional opinions were projected as determinative, requiring the court to assert that such expertise cannot override individual choice. At their core, both cases posed the same constitutional question as to whether the State can decide for a woman, or must instead enable her to decide for herself.In the 2009 judgment, Justice Kant had held: “Given the mental condition of the victim or her suspected physical disability, we have no reason to doubt that the continuation of the pregnancy shall constitute a grave injury and may Iead to more deterioration in the mental health of the victim.”Concluding, the judge declared that the provisions of the Medical Termination of Pregnancy Act, 1971, cannot impinge upon the constitutional powers of a constitutional court, especially its parens patriae jurisdiction, to be exercised in the best interest of the guardee. “We accordingly declined to accept that in the case of a mentally retarded major pregnant woman the medical termination of her pregnancy shall always depend upon her own decision,” it said.Yet, as the CJI pointed out on Thursday, that trajectory was interrupted. “Unfortunately, the Supreme Court stayed it,” said Justice Kant, describing the intervention as both “unfortunate” and “unnecessary”. Had it not been stayed, he added, “the law would have been settled by now”.By an order in August 2009, a Supreme Court bench, led by then CJI KG Balakrishnan, directed that the woman would carry the child to term and that a state-run institution would take care of the woman and the child.The CJI’s remark underscored how the legal questions first confronted in 2009, around autonomy, consent and the limits of State intervention, have continued to surface in fragmented litigation, often requiring constitutional courts to step in on a case-by-case basis.Those very questions resurfaced in the latest case. The court was hearing a curative plea by AIIMS, which argued that termination at this stage was medically unviable and could result in a premature live birth or long-term health consequences for the minor.Rejecting this line of reasoning, the bench held that the ultimate decision rests with the pregnant individual and her guardians, not with the State or its institutions. The court described the situation as a “fetus versus child” conflict and held that the law must prioritise the dignity, future and well-being of the 15-year-old.“Nothing under the sun or on the earth can compel her to carry the fetus to full term when she does not want it,” observed the Chief Justice, emphasising the trauma and life-altering consequences of forced motherhood.Following the court’s refusal to entertain the curative plea, additional solicitor general Aishwarya Bhati told the bench that AIIMS would proceed with the termination during the day.Even as it asked the AIIMS not to press its curative plea, the bench signalled that the statutory framework itself may require reconsideration. CJI Kant suggested that timelines under the Medical Termination of Pregnancy Act, 1971 may not adequately address cases of rape and severe trauma, indicating the need for a more flexible, rights-based approach.In many ways, the case reflects a closing of the loop. The principles articulated in 2009 about autonomy, dignity and the limits of State control have now been reaffirmed at the highest level. For CJI Kant, the moment was both reflective and consequential: a reminder of an earlier attempt to settle the law, and of how that unfinished conversation has now returned, demanding resolution.