Punjab and Haryana High Court stresses balance of rights in sexual autonomy case
Saurabh Malik
Chandigarh, March 17
The Punjab and Haryana High Court has emphasised the importance of recognising both rights and responsibilities inherent in exercising sexual autonomy. Justice Vinod S Bhardwaj underscored that individuals have freedom to make choices. But they must also be prepared to accept the consequences accompanying those choices.
The judgment came in a case where a plus II student was seeking medical termination of pregnancy after 24 weeks. Justice Bhardwaj’s Bench was told that the petitioner fell in love with a boy before entering physical relations. But later they parted ways.
Justice Bhardwaj asserted unmarried girl or a single mother could not be made to suffer social, physical, psychological and financial trauma merely for exercising her rightful autonomy. Her right of privacy and dignity also empowered her to choose whether she wanted to disclose her partner’s name. The law, too, could not compel her to make the name public.
Justice Bhardwaj observed that Article 21 guaranteed life and personal liberty in accordance with the procedure established by law. But an individual could not claim unbridled right, when it was subject to procedural restrictions. The petitioner could not claim entitlement to seek medical termination, notwithstanding the mandate of law.
Justice Bhardwaj observed that possible social stigmatic fallout of the unwanted pregnancy could not be entirely ruled out. But the legislature had prescribed a timeframe for permitting termination after considering medical condition and the status of the foetus.
Justice Bhardwaj added that the law might confer a right to be exercised by the mother to seek termination of pregnancy. But the right was recognised by law till the pregnancy completed 24 weeks. Ordinarily, the court might have approved medical termination if the foetus or the mother had chances of suffering grave physical or mental harm or the child was likely to be born with serious physical, mental or psychological deformities. But mental shock or stigma as a result of a ‘pregnancy not approved, but on account of a consensual relationship, could not be seen as an event which would have an irreversible mental hazard’.
He further said: “Exercise of a right of sexual autonomy also at times comes along with the responsibility to discharge duties that arise on exercise of such an option. A person may be called upon to live with the consequences of the option exercised, when such consequences cannot be erased and are required to co-exist. The desirability of a circumstance cannot outweigh the reality of the circumstance.”
Justice Bhardwaj also directed re-determination of pregnancy to see if termination could be carried out without feticide. The state, among other things, was directed to ensure institutional delivery and handing over the child to welfare committee in case termination could not be carried out.
