The Supreme Court on Wednesday pronounced a split verdict on the Centre's plea for recall of its October 9 order granting permission to a married woman, a mother of two, to terminate her 26-week pregnancy. While Justice Hima Kohli said that her judicial conscience does not allow her to permit termination, expressing disagreement, Justice BV Nagarathna said the woman's decision must be respected.
The two-judge bench pulled up the All India Institute of Medical Sciences (AIIMS) authorities for seeking clarification of its October 9 order allowing the woman to terminate her pregnancy, by citing some fresh concerns. While the bench allowed the abortion on October 9, AIIMS authorities wrote to Additional Solicitor General Aishwarya Bhati – who represented the government in the matter – saying the foetus appeared to be “viable” and had a “strong possibility of survival”.
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The matter was again referred to the court today. Justice Kohli, referring to the communication by the AIIMS authorities, said, "What’s being said now…is entirely much wider. This is not what was being said (earlier). If they wanted, they could have done all of that then and the court would have taken notice of it because we are relying on the report…we ourselves asked for it…How is it that they decided to go this way only after the order was passed and not early?.”
What AIIMS authorities said
The government's legal representative argued that the decision to terminate the pregnancy had been made despite the medical board's opinion that the fetus had a viable chance of survival and that “they would have to conduct a foeticide”. The doctors said that given this, “we will need a directive from the Supreme Court on whether a foeticide (stopping the fetal heart) can be done before termination”.
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After taking into consideration the 'new' report, Justice Kohli said, "Which court will say stop the heartbeat of a foetus which has life? We are wondering which court would do that. Speaking for myself, I would not."
The bench of Justices Hima Kohli and B V Nagarathna, which had passed the October 9 order, said the Centre's petition be now placed before Chief Justice D Y Chandrachud for being marked to an appropriate bench for adjudication.
