What Is Happening In Gujarat High Court?: Apex Court Reprimands ‘Counterblast Order’ Passed On A Saturday In Chamber

It is to be noted that on last Saturday, in a special hearing, the Court lamented the High Court for its “casual and lackadaisical attitude” and further directed the medical committee to submit a fresh report on the current medical condition of the victim. Further, noting that pursuant to the August 19, 2023 order of the Court, a Single Judge bench of the High Court passed a subsequent order in the matter, the Court today orally criticized the manner in which the single judge took up the matter.

“We do not appreciate the High Court passing such orders as a counterblast to Supreme Court orders…Are you supporting this (to the counsel appearing for the State)?. We thank you for bringing this to our notice. What is happening in High Court of Gujarat? Do judges retort like this to the superior court's orders?...No Court in India can retort to a Supreme Court's order like this on a Saturday, sitting in the chamber, in the absence of any notice to the parties and their counsel…we are very clear about this”, observed Justice B.V. Nagarathna.

Justice Ujjal Bhuyan, who was part of the Bench, objecting to the manner in which the order was passed, said, “…we don’t have to justify our orders by passing a subsequent order. The view taken, sorry to say, it is against the constitutional philosophy. How can you perpetuate an unjust condition on the victim…?”.

During the hearing today, the Bench, noting the fresh medical report submitted by the Medical Board suggesting that the procedure can be carried out safely without adversely affecting the health in general was of the opinion that there was nothing left in the matter, and was inclined at the outset to permit the appellant to terminate her pregnancy.

Pursuant to this, Advocate Swati Ghildiyal, Standing Counsel for the State of Gujarat while opposing, drew the Court’s attention to an order passed by the Single Judge bench of the Gujarat High Court, which was passed after the Apex Court’s order on August 19, 2023.

“What order was passed by the High Court on a Saturday?”, asked Justice Nagarathna.

Solicitor General Tushar Mehta submitted that there was some misunderstanding concerning the judge and highlighted the process of note for speaking to minute in the Gujarat High Court.

The Bench, however, refused to accept any submissions or contentions justifying the order so passed in contravention to its order.

Although, upon Mehta’s request to not make any adverse remarks in the order, the bench restricted itself from saying anything on the order passed by the Single Judge.

Senior Advocate Sanjay Parikh appearing for the petitioner, while referring to the Single Judge, mentioned an instance where while dealing with a minor rape survivor, the Judge had cited Manusmriti.

The Bench, while allowing the appellant to terminate her pregnancy, directed her to be present at the Hospital during the course of the day or by tomorrow i.e. August 22, 2023 at 9 am.

”…In the Indian society within the institution of marriage pregnancy is a reason for joy and celebration and for great expectation not only for the couple but for the families and friends. By contrast, pregnancy outside the marriage in most cases is injurious, particularly after a sexual assault or abuse and is a cause for stress and trauma affecting both the physical and mental health of the pregnant woman, the victim. Sexual assault or sexual abuse of a woman is itself distressing and sexual abuse resulting in pregnancy compounds the injury. This is because such a pregnancy is not a voluntary or mindful pregnancy. In Suchita Srivastava v State of Chandigarh 2009 9 SCC 1 this Court has expressed that the right of a woman to have reproductive choice is an insegregable part of her personal liberty as envisaged in Article 21 of the Constitution of India. She has a sacrosanct right to her personal bodily integrity…”, the Bench noted in its order.

In the present matter, as per the averments, the writ petition was filed on August 7, 2023, and the matter was taken up before the High Court on August 8, 2023, and a direction was issued for constitution of a Medical Board to ascertain the status of the pregnancy as well as the health status of the petitioner.

Pursuant to which, the medical board submitted its report on August 11, 2023 and the same was taken on record by the High Court the same day. However, ordered listing of the case twelve days thereafter i.e. on August 23, 2023, ‘losing sight’ of the fact that every day’s delay was crucial and of great significance.

However, it was noticed that the case status on August 17, 2023 showed that the petition has been rejected on the day when the case was listed.

Consequentially, the bench while directing the matter to be listed today, as the first item, observed, “In the circumstances, we direct the petitioner herein to appear before the KMCRI Hospital, Bharuch today (on Saturday) for being examined once again and the latest Medical Report shall be submitted to this Court by tomorrow evening i.e. August 20, 2023 by 6.00 P.M. by electronic mode. The same shall be put up before this Court by Monday i.e. August 21, 2023 along with a copy of the impugned order, if available”.

Cause Title: XYZ v State of Gujarat