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A vs The Principal Secretary Health And ... on 1 May, 2023

Author: Prathiba M. Singh

Bench: Prathiba M. Singh

                          $~53
                          *      IN THE HIGH COURT OF DELHI AT NEW DELHI
                          +              W.P.(C) 5552/2023 & CM APPL. 21830-31/2023
                                 A                                             ..... Petitioner
                                                    Through:      Dr Amit Mishra Advocate (M:
                                                                  9891592800).
                                                    versus

                                 THE PRINCIPAL SECRETARY HEALTH AND FAMILY
                                 WELFARE DEPARTMENT & ORS.                 ..... Respondents
                                                Through: Ms Hetu Arora Sethi ASC, GNCTD
                                                         for R-1 (M: 9810368590).
                                                         Mr Kirtiman Singh CGSC with Mr
                                                         Waize Ali Noor, Mr Madhav Bajaj
                                                         Adv and Mr Yash Upadhyay, Advs
                                                         for R-2 (M: 9582829588).
                                 CORAM:
                                 JUSTICE PRATHIBA M. SINGH
                                          ORDER

% 01.05.2023

1. This hearing has been done through hybrid mode.

2. The Petitioner is a 14 year old minor girl who is stated to be in the 11th week of pregnancy. She has approached this Court through her mother with the prayer that since her pregnancy was a result of a consensual relationship and the Petitioner wishes to terminate the same, the details of the Petitioner may be masked and not disclosed so as to not compromise her safety and interest.

3. Ld. counsel for the Petitioner submits that no Registered Medical Practitioner (RMP) is willing to undertake the termination of the pregnancy as the Petitioner is praying for masking of her identity.

4. In N v. Principal Secretary Health and Family Welfare Department & Ors., W.P(C) 291/2023, this Court had considered the judgment of the Hon'ble Supreme Court in X v. Principal Secretary Health and Family Welfare Dept, Govt NCT of Delhi & Anr. and had permitted the non- disclosure of the identity of the minor, her guardian and her family. The operative portion of the said order reads as under:

"10. Thereafter, vide judgment dated 29th September, 2022 in X v. The Principal Secretary, Health and Family Welfare Dept., GNCTD & Anr. [2022 SCC Online SC 1321], the Supreme Court has also observed that the benefit of Rule 3B(b) of the Medical Termination of Pregnancy Rules, 2003, which stipulates the categories of women eligible for termination of pregnancy up to twenty-four weeks, has to be extended to minors. The relevant observations of the Supreme Court are as under:

"77. Rule 3B(b) includes minors within the category of women who may terminate their pregnancy up to twenty-four weeks. They have been included in the list of special categories of women because adolescents who engage in consensual sexual activity may be unaware that sexual intercourse often results in pregnancy or be unable to identify the signs of a pregnancy. The Protection of Children from Sexual Offences Act 2012 is gender neutral and criminalizes sexual activity by those below the age of eighteen. Under the POCSO Act, factual consent in a relationship between minors is immaterial. The proscription contained in the POCSO Act does not - in actuality - prevent adolescents from engaging in consensual sexual activity. We cannot disregard the truth that such activity continues to take place and sometimes leads to consequences such as pregnancy. The legislature was no doubt alive to this fact when it included W.P.(C) 5552/2023 Page 2 of 9 Signature Not Verified Digitally Signed By:DHIRENDER KUMAR Signing Date:03.05.2023 18:04:04 adolescents within the ambit of Rule 3B of the MTP Rules.

78. The absence of sexual health education in the country means that most adolescents are unaware of how the reproductive system functions as well as how contraceptive devices and methods may be deployed to prevent pregnancies. The taboos surrounding pre-marital sex prevent young adults from attempting to access contraceptives. The same taboos mean that young girls who have discovered the fact that they are pregnant are hesitant to reveal this to their parents or guardians, who play a crucial role in accessing medical assistance and intervention.

79. Furthermore, Section 19(1) of the POCSO Act requires that any person, including a child, who has knowledge of the commission of an offence punishable under the POCSO Act, or an apprehension that such an offence may be committed, is mandatorily required to provide information to the Special Juvenile Police Unit or the local police. Section 19(2) of the POCSO Act stipulates that every such report under Section 19(1) shall be ascribed an entry number and recorded in writing, read over to the informant, and entered in a block to be kept by the police unit. Failure to report, as mandated by Section 19, is a punishable offence under Section 21 of the POCSO Act. Neither the POCSO Act or the Protection of Children from Sexual Offences Rules 2012 prescribe a template or a format for the report mandated under Section 19(1).

80. When a minor approaches an RMP for a medical termination of pregnancy arising out of a consensual sexual activity, an RMP is obliged under Section 19(1) of the POCSO Act to provide information pertaining to the offence committed, to the concerned authorities. An adolescent and her W.P.(C) 5552/2023 Page 3 of 9 Signature Not Verified Digitally Signed By:DHIRENDER KUMAR Signing Date:03.05.2023 18:04:04 guardian may be wary of the mandatory reporting requirement as they may not want to entangle themselves with the legal process. Minors and their guardians are likely faced with two options - one, approach an RMP and possibly be involved in criminal proceedings under the POCSO Act, or two, approach an unqualified doctor for a medical termination of the pregnancy. If there is an insistence on the disclosure of the name of the minor in the report under Section 19(1) of POCSO, minors may be less likely to seek out RMPs for safe termination of their pregnancies under the MTP Act.

81. To ensure that the benefit of Rule 3B(b) is extended to all women under 18 years of age who engage in consensual sexual activity, it is necessary to harmoniously read both the POCSO Act and the MTP Act. For the limited purposes of providing medical termination of pregnancy in terms of the MTP Act, we clarify that the RMP, only on request of the minor and the guardian of the minor, need not disclose the identity and other personal details of the minor in the information provided under Section 19(1) of the POCSO Act. The RMP who has provided information under Section 19(1) of the POCSO Act (in reference to a minor seeking medical termination of a pregnancy under the MTP Act) is also exempt from disclosing the minor's identity in any criminal proceedings which may follow from The RMP's report under Section 19(1) of the POCSO Act. Such an interpretation would prevent any conflict between the statutory obligation of the RMP to mandatorily report the offence under the POCSO Act and the rights of privacy and reproductive autonomy of the minor under Article 21 of the Constitution. It could not possibly be the legislature's intent to deprive minors of safe abortions.

82. As opposed to consensual sexual activity among adolescents, minors are often subjected to sexual abuse by strangers or family members. In such cases, minor girls may (due to their tender age) be unaware of the nature of abuse the abuser or rapist is subjecting them to. In such cases, the guardian of minor girls may belatedly discover the fact of the pregnancy, necessitating the leeway granted by Rule 3B."

11. In paragraph 81 of the judgment in X v. The Principal Secretary (supra), extracted hereinabove, the Supreme Court has held that the Registered Medical Practitioner ("RMP"), who is obligated under Section 19(1) of the POCSO Act to provide information pertaining to the offence committed to the concerned authorities, can keep the identity and personal details of the minor undisclosed in such information. Further, it has been clarified that such exemption from disclosure of the identity of the minor would also extend to criminal proceedings which may follow.

12. This Court takes note of several issues which arise in the context of the present petition, in respect of the lack of sexual health education in schools, as also, consensual relationships amongst minors and unwanted or accidental pregnancies resulting therefrom. This Court is of the view that if the termination of pregnancy is not permitted in such cases, without disclosing the identity of the minor, there is a real threat for the health and safety of such minors. Such minors or their guardians may be constrained to approach non-registered and unqualified medical practitioners, mid-wives, quacks, etc. which could also pose health risks for the minor. If the termination of pregnancy is not permitted in such cases, it would, in effect, result in the child being abandoned upon birth, young girls undergoing traumatic domestic conditions, as also, unfavourable social implications and suffering for their family. The minor girl, in the present case, is also studying and her education would also be jeopardised if W.P.(C) 5552/2023 Page 5 of 9 Signature Not Verified Digitally Signed By:DHIRENDER KUMAR Signing Date:03.05.2023 18:04:04 the termination of pregnancy is not permitted. This Court is convinced that the interest of the minor girl is paramount at this stage, due to which the termination ought to be permitted. However, the same also cannot go unreported to the authorities. Thus, in the case of minors, the termination of any unwanted pregnancies ought to be allowed, if sought, without disclosure of the identity of the minor girl, with the guardians' consent, in terms of the provisions of the Medical Termination of Pregnancy Act, 1971 and the Rules framed thereunder. Thus, in terms of the judgment of the Supreme Court in X v. The Principal Secretary (supra) extracted hereinabove, the report in terms of Section 19(1) of the POCSO Act shall be lodged, however, the identity of the minor, her guardian, or family, including any other details by which the minor can be identified, shall not be disclosed in the said report. Steps need to be taken to circulate the decision of the Supreme Court in X v. The Principal Secretary (supra) and the fact that RMPs can report offences resulting in pregnancies in the case of minors by not disclosing the identity of the minors and their families.

13. As on today, this Court is clearly of the opinion that the pregnancy of the minor deserves to be terminated, as she is accompanied by the Petitioner who is her mother and has filed the present petition in view of the refusal of the doctors to terminate the pregnancy without reporting it to the police authorities.

14. Accordingly, at this stage, the following directions are issued:

i. The minor daughter of the Petitioner is permitted to undergo the procedure for medical termination of pregnancy at the All India Institute of Medical Sciences ("AIIMS"), New Delhi, under the supervision of a properly constituted medical team. The expenses towards the same shall be borne by the Respondent No.2 - Union of India. The doctor deputed at the Medical Centre of the Delhi High W.P.(C) 5552/2023 Page 6 of 9 Signature Not Verified Digitally Signed By:DHIRENDER KUMAR Signing Date:03.05.2023 18:04:04 Court shall assist the minor and her mother in this process;

ii. In the course of performing the procedure for the termination of the pregnancy and thereafter, it shall be ensured that the foetus is duly preserved, in accordance with law, for the purposes of DNA sampling or evidence, as may be directed; iii. The Respondent No.2 - Union of India is directed to make arrangements and to facilitate the termination of the pregnancy at AIIMS, New Delhi, which shall take place at the earliest, and, in any case, on or before 16th January, 2023, after complying with the prescribed procedures; iv. The identity of the Petitioner, as also, her family shall not be disclosed in any of the hospital records by AIIMS, the medical team, the RMP or any of the concerned authorities;

v. The report in terms of Section 19(1) of the POCSO Act, shall also not disclose the identity of the minor and her family or any other details by which she can be identified;

vi. The report prepared in terms of Section 19(1) of the POCSO Act shall be maintained and placed before this Court in a sealed cover. The same shall await further orders of this Court. The said sealed cover shall be filed by Ms. Hetu Arora Sethi, ld. Counsel, at least three days before the next date of hearing;

vii. Status report as to the termination of the minor's pregnancy be also filed by the Respondent No.2 - Union of India by the next date of hearing;

15. It is made clear that the police authorities shall not enquire into the matter or make any visits to the Petitioner and her family, at her residence or elsewhere, till further orders of this Court."

5. Considering the submissions of the ld. counsels for the parties, the age of the Petitioner as also the gestation period, it is directed as under:

i) The Petitioner is permitted to approach the Medical Superintendent LNJP Hospital, Delhi, for termination of her pregnancy which shall be carried out immediately inasmuch as the gestation period is within the period permissible under the Medical Termination of Pregnancy Act, 1971. The same shall be under the supervision of a properly constituted medical team. The expenses towards the same shall be borne by the Respondent No.1 - GNCTD;

ii) GNCTD is directed to make arrangements and to facilitate the termination of the pregnancy at LNJP Hospital, Delhi;

iii) In the course of performing the procedure for the termination of the pregnancy and thereafter, it shall be ensured that the foetus is duly preserved, in accordance with law, for the purposes of DNA sampling or evidence, as may be directed;

iv) The identity of the Petitioner, as also, her family shall not be disclosed in any of the hospital records by AIIMS, the medical team, the RMP or any of the concerned authorities;

v) The report in terms of Section 19(1) of the POCSO Act, shall also not disclose the identity of the minor and her family or any other details by which she can be identified;

vi) It is made clear that the police authorities shall not enquire into the matter or make any visits to the Petitioner and her family, at her residence or elsewhere. The concerned SHO shall make sure that the details of the Petitioner are not disclosed the during the process of investigation;

vii) In terms of the judgment N v. Principal Secretary Health and Family Welfare Department & Ors., W.P (C) 291/2023, the report W.P.(C) 5552/2023 Page 8 of 9 Signature Not Verified Digitally Signed By:DHIRENDER KUMAR Signing Date:03.05.2023 18:04:04 shall be lodged by the concerned RMP without disclosing the Petitioner's identity, contact details or identity of her family in any manner.

6. This petition, along with all pending applications is disposed of in the above terms.

PRATHIBA M. SINGH, J MAY 1, 2023 mr/kt W.P.(C) 5552/2023 Page 9 of 9 Signature Not Verified Digitally Signed By:DHIRENDER KUMAR Signing Date:03.05.2023 18:04:04