On April 17, Justice Swarana Kanta Sharma gave a strong judgment, pointing out how hospitals have failed to carry out the court’s directions.
New Delhi: The Delhi High Court recently expressed its unhappiness over doctors in the national capital not following its earlier orders. These orders were meant to ensure that rape survivors—especially those who are minors—can quickly get an abortion when they need it, without unnecessary delays.
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On April 17, Justice Swarana Kanta Sharma gave a strong judgment, pointing out how hospitals have failed to carry out the court’s directions.
Minor R Through Mother H v. State (NCT of Delhi) & Anr.
These directions were earlier passed on January 25, 2023, and November 3, 2023. In those orders, the High Court had told hospitals to create medical boards to examine rape survivors who want to medically end their pregnancies.
In this case, decided on January 25, 2023, the court addressed the situation of a 14-year-old rape survivor who was approximately 24 weeks pregnant. Recognizing the urgency and sensitivity of such cases, the court issued guidelines to ensure timely medical examinations and decisions regarding termination.
Key directives included:
- Ensuring the establishment of Medical Boards in all government hospitals equipped with proper MTP centers, as mandated by Sections 3(2C) and 3(2D) of the MTP Act
- Mandatory urine pregnancy tests during medical examinations of sexual assault victims.
- Immediate presentation of pregnant victims before a Medical Board on the same day if they express a desire for termination.
The court’s 2023 orders were clear that even if the pregnancy had crossed 24 weeks, the medical check-up should be done immediately, and a report should be kept ready, so that the girl or her family could approach the court without delay.
However, the court observed that things have not improved much on the ground.
The judge said “The intent to expedite and streamline the process for termination of a pregnancy conceived as a result of sexual assault has, regrettably, not translated into effective and time-sensitive action.”
The court was dealing with the case of a 15-year-old minor girl who was pregnant for over 27 weeks—more than the legal limit of 24 weeks as per the Medical Termination of Pregnancy Act. Her family had gone to LNJP Hospital, a Delhi government hospital, to terminate the pregnancy. But the hospital asked them to first get a court order because the pregnancy had gone past the allowed time.
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This delay caused hardship for the young survivor. The High Court criticized this action and said that the permanent medical boards that were formed in eight government hospitals and five private hospitals in Delhi should not wait for court orders. These boards were supposed to examine survivors quickly and prepare reports on time.
The court said it was upsetting that, even after two years, its earlier orders had not been followed. It questioned how a rape survivor, already going through trauma, was made to wait for days just to get a court’s order. The judge noted that this kind of waiting period provided no relief to the girl.
The court said:
“The state should bear all the expenses for the termination of the pregnancy of the petitioner, her medicines and food,” and added, “and if the child is born alive, the superintendent of the hospital should ensure that everything which is feasible be provided to it.”
To fix the system, the court issued a new set of guidelines to help minor rape survivors get both legal and medical help quickly. It noted that many of these survivors come from poor or disadvantaged backgrounds and often do not know which legal body to approach or what the legal procedure is for abortion.
Now, the court has ordered that whenever a minor rape survivor, who is more than 24 weeks pregnant, is taken to a Child Welfare Committee (CWC) and referred to a hospital for medical examination or abortion, the CWC must immediately inform the Delhi High Court Legal Services Committee.
The High Court was also aware that sometimes, abortion can be carried out with the consent of the survivor or her family, and a court order needs to be passed quickly. In this case, the court was told that the minor survivor had already been admitted in a hospital, and so the judge ordered the hospital to go ahead with the abortion on Friday.
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The court also gave instructions that doctors should preserve the foetus’ tissue. This is important as it can be used for DNA testing in the criminal case against the rapist.
Lastly, the court asked the Medical Superintendent of LNJP Hospital to explain why there was a delay of one week in conducting the girl’s medical examination and preparing the report.
