Suchita Srivastava v. Chandigarh Administration, 2009 (9) SCC 1
This case was with regard to the reproductive rights of a woman with mental retardation residing at a government run welfare institution in Chandigarh who became pregnant due to a rape by an in-house staff and who wanted to keep the baby and carry on the pregnancy to full term. The Chandigarh Administration filed a petition in the high court seeking permission to terminate her pregnancy under the Medical Termination of Pregnancy Act, 1971 (“MTP Act”) on the ground that she was not capable of carrying on with the pregnancy and would not be able to look after a child. Although the expert body found that the woman had expressed her wish to bear her child, the high court directed the termination of the pregnancy. The woman, through an amicus, appealed to the Supreme Court and one of the main issues before the Supreme Court was regarding the legal capacity of a woman with mental retardation to decide on her pregnancy.
The Supreme Court noted the provisions of the MTP Act, which provided that where pregnancy is a result of rape and termination of the same is contemplated, the consent of the pregnant woman is mandatory. The court also noted the exception to this provision which provided that in case of a pregnant woman who is “mentally ill”, pregnancy can be terminated with the approval of the woman’s guardian. Following this, the court proceeded to make a distinction between ‘mental illness’ and ‘mental retardation’. Upholding the legal capacity of the appellant, the court held:
“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… 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.”
Thus the Supreme Court clearly held that the MTP Act required the consent of a mentally retarded woman for termination of pregnancy. Following this, the Court concluded that the Appellant was mentally retarded, had not consented to the termination of her pregnancy and in fact, had expressed her willingness to bear the child. Therefore it could not permit the termination of her pregnancy. In arriving at this conclusion, the Court not only recognised the reproductive rights of a woman under the MTP Act, but also recognised international norms and principles on mentally retarded persons and persons with disabilities under the CRPD. In this context the Court specifically held:
“Our conclusions in this case are strengthened by some norms developed in the realm of international law… 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.”
The court clearly recognised the right to legal capacity of women with mental retardation to take independent decisions on her pregnancy. The Supreme Court held that “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.” Therefore, the Supreme Court laid out the specific right to legal capacity which was not subject to an understanding of one’s situation and capacities. This case clearly follows the spirit of protection of legal capacity under Article 12 of the CRPD.