A two-judge bench of the Supreme Court on Wednesday pronounced a split verdict on the Centre's plea for recall of its October 9 order granting permission to a married woman, a mother of two, to terminate her 26-week pregnancy. A bench of Justices Hima Kohli and B V Nagarathna, which had passed the October 9 order, said the Centre's petition be now placed before Chief Justice D Y Chandrachud for being marked to an appropriate bench for adjudication.
While Justice Kohli said she was not inclined to permit the 27-year-old woman to terminate her pregnancy, Justice Nagarathna dismissed the Centre's application seeking recall of the October 9 order, saying the previous order was well considered.
The apex court had on Monday allowed the woman to proceed with medical termination of pregnancy after taking note that she was suffering from depression and was not in a position to raise a third child, emotionally, financially and mentally.
Earlier on Wednesday the Supreme Court expressed anguish over a fresh medical report on the strong possibility of survival of a foetus of a 26-week pregnant married woman, who was earlier allowed to abort it, and asked which court will say "stop the fetal heartbeat". The apex court was hearing an application seeking recall of its order.
At the outset, a bench of Justices Hima Kohli and B V Nagarathna asked, "If the doctor could be so candid in two days short of the earlier report, why was not the (earlier) report more elaborate and more candid?"
"Why were they being ambiguous in the earlier report?" the bench asked Additional Solicitor General (ASG) Aishwarya Bhati, who was representing the Centre.
The bench said it had passed the earlier order after taking into account the report submitted by a team of doctors from AIIMS, New Delhi, which had examined the woman.
It observed after giving an "ambiguous report" to the court saying the woman does have problem which could go up, the new report now says there is a strong possibility of survival of the foetus.
"… which court will say stop the heartbeat of a foetus which has life? We are wondering which court would do that. Speaking for myself, I would not," Justice Kohli said.
"Now to say there is strong possibility of survival and if the court say, we will stop the fetal heartbeat. For heaven's sake, which court will say stop the fetal heartbeat," she said.
The bench said it does not appreciate the way the Centre had mentioned the matter on Tuesday before a bench headed by Chief Justice of India D Y Chandrachud.
"When one bench of this court decides a matter, without any pleadings whatsoever, how can you move an intra-court appeal before a three judge bench of this court…," Justice Nagarathna said.
"If the Union of India starts doing this, tomorrow, a private party will also do this," she said, adding, "Every bench of the Supreme Court is Supreme Court. We are one court sitting in separate benches. Speaking for myself, I would not appreciate this on the part of Union of India".
Bhati explained to the bench about the circumstances leading to mentioning of matter on Tuesday before the CJI-led bench.
During the hearing, the bench also interacted with the woman and her husband who were present virtually.
The bench made her understand as to what the new report has said about the foetus.
It asked the counsel appearing for the woman to file an affidavit on what she wanted to do in the wake of the medical report.
"We don't want any such scope of misunderstanding. We are talking of a precious life here. We would not want to take any risk," the bench said while posting the matter for hearing at 2 PM.
On Tuesday, a bench headed by the CJI had directed AIIMS to defer medical termination of the woman, who was allowed to abort the foetus a day before by another bench.
Bhati had told the bench that termination of pregnancy was recommended despite the medical board saying the foetus had a viable chance of being born and "they would have to conduct a foeticide".
"Can you come with a formal application for recall (of the order). We will place before the bench which passed the order. The AIIMS doctors are in a very serious dilemma... I will constitute a bench tomorrow morning. Please ask AIIMS to hold for now," a bench headed by the CJI-led bench had said.
On Monday, the bench headed by Justice Kohli had allowed the petitioner to proceed with medical termination of pregnancy.
The top court had on October 5 asked the All India Institute of Medical Sciences (AIIMS) to constitute a medical board to assess the medical condition of the woman, who was then over 25-week pregnant.
The woman has moved the apex court seeking its approval to terminate her pregnancy citing medical grounds, including that she is suffering from postpartum depression.
Under the Medical Termination of Pregnancy (MTP) Act, the upper limit for the termination of pregnancy is 24 weeks for married women, special categories including survivors of rape, and other vulnerable women such as the differently-abled and minors.