Abortion and Supreme Court’s Plenary Powers

The recent decision of the Supreme Court wherein it refused to allow a woman to abort her foetus which was 23 weeks old seems to have gone wrong. The mother of the foetus wanted the child to be aborted because the child was suffering from Down’s Syndrome, which is a disability and severely impairs proper intellectual and mental growth of the child.

The Supreme Court came to the decision indicating that its hands were tied and that there was no physical risk to the mother in continuation of the pregnancy. It is respectfully submitted that the Supreme Court seems to have missed the point. The point was not safety of the mother. The woman had moved the Apex Court so that a life which was yet to take birth did not face any difficulty after it was born. The Supreme Court is armed with plenary powers to do complete justice in a matter. Yes, it is true that the Supreme Court cannot digress from the legal substratum of a statute or a policy, but to take a stand that it was bound by letter of the law, does not appear to be a good enough reason. Even uncodified law, law of equity, etc are considered law and the Supreme Court does exercise such power. The present matter required the Supreme Court to view from that perspective.

Rendering justice is a divine function and Courts have to function within the confines of law. Yet all laws cannot contemplate all situations. There are some situations in which Courts need to travel and see beyond the law. And yes, this power cannot be exercised by lower Courts. Hence the Supreme Court decided matters after taking a holistic view of the matter. It is presumed that the Supreme Court has such maturity and legal acumen to render justice in such situations. Hence it is armed with such powers.

Coming back to the case at hand – a child is most loved and cared for by his or her mother. The mother knows what is best for a child. When a mother wants a foetus to be aborted because it has Down’s Syndrome, the Supreme Court ought not have restricted itself to a pedantic and parochial view of the law. It does not mean that a child with Down’s Syndrome is any lesser. A child with Down’s Syndrome has equal right to live and enjoy life as a child without it. But the mother may have her reasons for not being able to accept the fact. She may be faced with horrors of her child being teased as a child or that his/ her growth may be restricted. There may be so many other reasons. Moreover, when the mother is doubtful about the well-being of the child, the Courts ought to respect that.

It does not mean that every abortion case ought to be allowed. But the present matter deserved a better treatment. Moreover, the Courts have allowed abortion beyond 20  weeks (provided in Medical Termination of Pregnancy Act) in the past. So to hold that the Supreme Court’s hands are tied in such matters which require deeper contemplation and consideration, is a little uninspiring.


About kawaljit

Kawaljit Singh Bhatia is a Lawyer and appears regularly at the Supreme Court of India and Delhi High Court. He has handled various high-stake matters in the filed of arbitration, telecom and broadcasting laws, labour matters, corporate matters, etc. He is passionate about legal issues that affect the society. He can be reached at kawaljitbhatia@gmail.com
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