A recent judgment given by the Bombay High Court, regarding medical termination of pregnancy of a young woman, who the court mentions as having ‘borderline’ intellectual disabilities and who is on antipsychotic drugs, gives the woman the right to become a parent. But interestingly, the same judgment is detrimental for both women’s rights and disability rights movements.
For obvious reasons, comparisons are drawn with the Suchita Srivastava vs Chandigarh case where the Supreme Court of India gave permission to a rape survivor with intellectual disabilities to become a mother.
For obvious reasons, comparisons are drawn with the Suchita Srivastava vs Chandigarh case where the Supreme Court of India gave permission to a rape survivor with intellectual disabilities to become a mother. In both the cases, motherhood is not denied to woman with intellectual disabilities. But the similarities end there as far as life situation of these two women are concerned.
Firstly, in the Chandigarh case, the woman was an orphan, brought up in a Government home and became pregnant within the custody because of rape. The institute authorities, where she was staying wanted to terminate her pregnancy. In the Bombay High Court case, the father of the woman, filed petition to terminate pregnancy, that is the result of a relationship of his ‘disabled’ daughter.
Though in both cases, the agency to become mother of the concerned women, are challenged; there are major differences between wanting to have a child from romantic relationship and wanting to become a mother after being raped by two guards within an institution. As we read the verdict, we understand that in the Chandigarh case, the young woman couldn’t comprehend the nuances of same.
The quotes from the verdict are as follows:
‘(vii) Does she believe that she has been impregnated through unvolunteered sex?
She has a limited understanding of the sexual act and relationship and even the concept of getting pregnant. She did not volunteer for sex and did not like the sexual act.
(viii) Is she upset and/or anguished on account of the pregnancy alleged to have been caused by way of rape/un-willing sex?
She has no particular emotions on account of the pregnancy alleged to have been caused by way of rape/un-willing sex. She is happy with the idea that she has a baby inside her and looks forward to seeing the same.’
This is a completely different scenario from the Mumbai case where the young woman had consensual sexual relation with a man who hails from Uttar Pradesh.
This is a completely different scenario from the Mumbai case where the young woman had consensual sexual relation with a man who hails from Uttar Pradesh.
Critique of the Chandigarh case: rights of women with disabilities
Chandigarh Nari Niketan case showed us the complete failure of State to give protection to an orphan woman with intellectual disabilities. The institution she was staying at could not give her security from sexual violence. Yet, it was unwilling to consider her willingness to continue with the pregnancy that happened due to rape. Finally the case reached Supreme Court and not surprisingly, the case was highly debated within the disability movement.
This case is still cited frequently in law journals and discussed during reproductive rights conferences and workshops regularly. The Chandigarh case got lot of media attention, even popular television shows like ‘Crime Patrol‘ (Hindi), ‘Satya Ghotona‘ (Bangla) also made episodes depicting this case. As the final verdict said that the young woman can retain her pregnancy, national level disability rights groups applauded it, calling it a landmark judgment.
It was indeed landmark because the UNCRPD was invoked in the Indian court for the first time. The most important part of that judgment was that the National Trust, an autonomous Government body was given responsibility of taking care of the unborn child, thus making the state responsible. The concern areas from a disability justice perspectives of the Chandigarh Judgment are twofold. It stated that:
‘These legislative provisions clearly show that persons who are in a condition of `mental retardation’ should ordinarily be treated differently from those who are found to be `mentally ill’. While a guardian can make decisions on behalf of a ‘mentally ill person’ as per Section 3(4)(a) of the MTP Act, the same cannot be done on behalf of a person who is in a condition of ‘mental retardation’.’
The Supreme Court clearly mentioned that since the young woman is ‘mentally retarded’ and not ‘mentally ill’, she has the right to take decision about her pregnancy.
The Supreme Court clearly mentioned that since the young woman is ‘mentally retarded’ and not ‘mentally ill’, she has the right to take decision about her pregnancy. That the disability movement can applaud such a verdict that shows preferential treatment of one kind of disability to another disability, itself is shocking. Moreover, the judgment also upholds the clause of MTP Act which states that foetus with anomalies can be aborted, thereby questioning ‘Right to Life’ of persons with disabilities. A judgment that invoked the CRPD in one hand, and at the same time, upheld such debatable clauses from MTP Act, is a contradiction in itself.
Critique of Bombay high court judgment
This judgment came in 2025, while the Chandigarh one is from 2009. The big question that comes to mind is what societal changes came in last 16 years? There is obviously a sea change in the legal scenario vis-a-vis Disability Rights in India. The older Persons with Disabilities Act (1995) is now redundant and replaced by Rights of Persons with Disabilities Act of 2016. Our Medical Termination of Pregnancy Act has also been amended. The current judgment states:
‘What is conspicuous is that neither the Board with a common opinion nor the Psychiatry Department, as an independent Department, is willing to declare the would-be mother as being a mentally ill person or a person with a mental disorder or mental retardation.’
One can read this judgment in different ways. It seems that the judgment could be different if the court found her with intellectual or psychosocial disabilities. It is clear that the learned judges viewed disability from a medical model. One can accept the ‘R’ word in a 2009 judgment, as at that point of time our Disability legislation Persons with Disabilities Act, was also using the term ‘Mental Retardation’. Our current law uses the term ‘intellectual disability’. We also now have a ‘Handbook concerning Persons with Disabilities‘ published by Supreme Court in 2024 which includes a separate chapter on proper usage of terminology. Interestingly, the same Handbook also says –
‘The United Nations Committee on the Rights of the Child, in 1997, while discussing the rights of children with disabilities stated: ‘It was of course vitally important to work towards the creation of a safer world for children in which the risks of impairment and harm were minimised, but the solution was not through the denial of life itself as a preventive strategy. Rather, we must celebrate diversity and learn to celebrate the birth of every child, with or without disability.
The Supreme Court of India affirmed this approach in a case wherein the Court rejected a plea of a woman to abort her twenty-six-week-old foetus which the medical reports showed had Down Syndrome. The Court observed that while individuals with Down Syndrome often face mental and physical challenges, their intelligence level can vary, and a large proportion may not have severe intellectual disability. This case shines a spotlight on the mistaken belief that a foetus with disabilities should be aborted to prevent ‘suffering’. It is vital to sensitise individuals and future parents that denial of life as a preventive strategy against disability should not be resorted to, and that there are a host of measures and support structures which can allow children with disabilities to fully participate in society.’
Having such progressive thoughts in the Handbook however does not deter the recent judgment having passages like –
‘The foetus is healthy and there is no lethal congenital anomaly. The specific report of the OBGY Department indicates USG S/O Single Live Intrauterine Gestational Sac on Mean Gestational Age 20 Weeks and 4 days (as on 4th January, 2025) with no Lethal Congenital Anomaly at present with Cephalic presentation. The weight of the foetus is around 367 grams and is a live foetus. As regards the would-be mother, it is mentioned that she is a borderline intellectual disability case with IQ 75%, on antipsychotic medication since 2011.’
Even if one gives the benefit of doubt to the intention of judges regarding the disability justice part in 2025 judgment, what stands out in this case is that they seemed to be too concerned about if the young woman’s boyfriend is ready to marry her. Since they got the reassurance that this marriage will take place, they gave the verdict that the termination of pregnancy should not take place.
An analysis of the recent judgment shows the ableist as well as patriarchal mindset of the Court.
An analysis of the recent judgment shows the ableist as well as patriarchal mindset of the Court. One may rejoice that this young woman will be able to become a mother, which she wished for. However, rights based movements cannot remain concerned only about one individual’s gains. The larger issue of reproductive rights of women with disabilities remains unaddressed even after 16 years of the Chandigarh Case.
Thus the passage of the Rights of Persons with Disabilities Act as well as the Supreme Court’s handbook for the judiciary becomes meaningless as these do not seem to percolate down to court processes.
About the author(s)
Shampa Sengupta is an activist working on gender and disability rights. She is a person with mental illness and also a primary care-giver.
