Two recent orders of superior courts are disturbing. The first order was delivered by the Supreme Court of India in a case relating to medical termination of pregnancy of a minor aged 14 years. Considering the facts and circumstances in totality, the Bombay High Court refused permission to terminate the pregnancy. The order of the Bombay High Court was challenged in the Supreme Court. The Supreme court called for medical records and arrived at a conclusion that the order of the Bombay High Court deserves to be set aside. However, medical experts were not able to implement the direction of the Supreme Court. In the meanwhile, the parents of the minor moved the Supreme Court and invited its attention to serious physical and mental health issues and prayed for recall of that order.
While recalling that order the Supreme Court made observations on Section 3(4)(a) and (b) of the Medical Termination of Pregnancy Act, 1971. The Supreme Court was perturbed by the fact that the minor in question suffered the brutality of a crime like rape. The pregnancy was forced upon her. Her plight persuaded the Supreme Court to pass the initial order but, with great respect, it overlooked a salutary provision of law and settled legal principle that a minor is incapable of consenting to terminating even forced pregnancy. Minor’s trauma apart, the parents were major stakeholders. Unless and until they agree and consent, no process envisaged by the law could have been undertaken.
With great respect, the Supreme Court should have realised the predicament of doctors and medical experts involved in the process who are serving public health care institutions. As public servants they could not have proceeded without obtaining written consent for the surgical process. There was a health risk both, to the minor as well the foetus. In the circumstances, absent compliance with the mandatory condition, even the Hon’ble Supreme Court could not have issued the initial direction. However, in rightly recalling its earlier order, and rectifying an apparent legal mistake, the Supreme Court ought not to have commented upon the law. It is well settled that when Parliament enacts a law, it is presumed that its intervention is necessary and in the chosen words and expressions. The normal rule is to allow the pregnancy and enable delivery. For medical reasons pregnancy can be terminated but that too is regulated. For that, the Parliament enacted the Medical Termination of Pregnancy Act. It has been amended but consistent with the underlying object and purpose. No permission to terminate the pregnancy at will and at any time. That is also the scheme of penal laws which makes such acts a offence (See Sections 312 to 318 of IPC and the MTP Act, 1971).
In the case of a minor, the provisions of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO’) vide Section 41, clarify that Sections 3 to 13 (both inclusive) shall not apply in case of medical examination or medical treatment of a child when such medical examination or medical treatment is undertaken with the consent of his parents or guardian. The words “consent of the parents or guardian of the minor” are significant. That is a condition precedent. POCSO treats a person below eighteen years as a child. A minor woman is a child. A minor cannot consent to and is not fit to take decisions touching its life and property. The Indian Majority Act, 1875 was already in the field along with other provisions relating to minors, when the Parliament inserted the requirement of consent of the guardians of a minor in the 1971 Act. The court may not agree with the legislative thinking but it is not empowered to probe the policy and wisdom of a legislation. The court’s perception may be not be in sync with that of the society. That we are allegedly orthodox and conservative regarding abortion or premature termination of pregnancies does not justify questioning the law. So long as it is Constitutional and valid it must be applied. In the circumstances, the requirement of consent in the MTP Act cannot be dispensed with by a court. More so, when nobody challenged the provisions in that behalf.
The settled law is that an act of the court should prejudice none. It is in public interest and to uphold the rule of law that Superior Courts recall their orders. That is justice according to law.
The second case is a bail order of the Bombay High Court. A person was convicted and punished for offences punishable under Section 376 of the Indian Penal Code and under Sections 4, 8 and 12 of POCSO. Rigorous imprisonment for ten years for offence punishable under Section 376 of the IPC was imposed but no separate sentence under Section 4 of the POCSO was awarded in view of Section 42 thereof. However, the Sessions Judge awarded punishment for sexual assault and sexual harassment of the victim.
The accused appealed to the High Court. The right of appeal against conviction and sentence does not carry with it a right to obtain suspension of sentence. A suspension of sentence is not automatic but governed by Section 389 of the Code of Criminal Procedure, 1973.
In the case referred above, the accused applied for bail. A learned single judge of the Bombay High Court allowed the application and ordered his release, which is exceptional in conviction and sentence for rape of a minor. Resultantly, the applicant has been released from jail pending the appeal. Post conviction circumstances, is a vital aspect in refusing bail on admission of appeal. The learned Judge should have realised that a very strong prima facie case has to be made out. The trial court’s order should be ex-facie perverse or legally erroneous. It is only then the discretionary power to grant bail pending appeal can be exercised. In the case at hand, the learned Judge failed to notice that the accused is convicted of a heinous offence viz. rape of a minor. In addition to IPC, such an act is also an offence under POCSO. Given the language of the statute (Section 375) of the IPC and Section 3 of the POCSO, the medical examination of the victim is not mandatory (see Sections 164A of the Cr.PC). Similarly, there is no mandate to call for report of a chemical analyser. The High Court faulted the judgment of the trial court allegedly because the victim did not raise any shouts at the time of the incident and the prosecution failed to examine a neighbour. Secondly, there is no sufficient medical evidence though the victim was examined immediately. Thirdly, there is no evidence of chemical analyser to connect the accused with the alleged incident. The learned Judge found that there is medical evidence inasmuch as the doctor was examined. With great respect, the ordinary rule is that a detailed discussion on merits is not permissible at the stage of bail. That is done when appeal is heard finally.
The learned Single Judge of the Hon’ble Bombay High Court has observed that when the victim is a minor there is no question of her consent. However, in paragraph 7 of the order dated May 3, 2024, the learned judge observes that when the victim is 17 years and above and the age gap between the accused and victim is not much and they had consensual sex, then, no offence under POCSO is committed. With great respect, this conclusion is legally unsound and contradicts the earlier finding on consent.
In POCSO, there is no exemption as every child below eighteen years is considered a minor. In criminal matter, non-compliance or errors during inquiry, investigation and trial are to be overlooked unless there is proven failure of justice. There is difference between irregularity and illegality. Further, there is a difference between irregularity vitiating the trial and conviction and an irregularity not vitiating it (see Section 465 of Cr.PC). With respect, the reasons assigned are unsupportable in law. The orders and judgments rendered by superior courts state frequently that children aged 15 to 17 know the consequences of their acts. The law does not say so and discretion has to be exercised in accordance therewith and not arbitrarily and capriciously. The observations in paragraphs 7 and 8 of the order denote that the learned Single Judge failed to notice the language of Section 375 of the IPC and Sections 4, 8 and 12 of POCSO. Further, the learned Judge should have also referred to Chapters VII and VIII of the POCSO. Section 29 of POCSO enacts a presumption of guilt not innocence. In the instant matter, the contrary was not proved justifies the conviction and sentence. By Section 30 of POCSO, the learned Judge has to presume the accused’s culpable mental state. Therefore, the minor’s perception of the consequences of her act is irrelevant. The legislative prescription overrides everything. The legal presumption is that sexual acts with minors are barred. There are contrary orders denying bail in POCSO / rape offences of the same High Court. Lack of consistency and certainty is tragic, to say the least.
The writer is an advocate and retired judge, Bombay High Court
