“Can’t Pass Order Against Superior Court…”: Supreme Court Raps High Court

New Delhi:

Coming down heavily on Gujarat High Court, the Supreme Court today said any court passing an order against a superior court’s ruling is against constitutional philosophy.

The matter relates to a petition by a rape survivor, seeking permission to terminate her pregnancy. The Supreme Court’s strong remarks came after the high court passed an order on Saturday, even after the Supreme Court listed the matter for today. The high court had refused relief to the petitioner, but the Supreme Court has allowed the termination of her pregnancy.   

“What is happening in Gujarat High Court? No court in India can pass an order against a superior court order. It is against constitutional philosophy,” the Supreme Court bench of Justice B V Nagarathna and Justice Ujjal Bhuyan said after it was informed of an order by the high court on Saturday.

Solicitor General Tushar Mehta, who was representing the Gujarat government, said the Saturday’s order was passed only to fix a “clerical error”. “There was a clerical error in the previous order and that was fixed on Saturday. It was a misunderstanding,” he said, adding, “We as the state government will request the judge to recall the order.”

This comes after the Supreme Court on Saturday flagged the delay by the high court in deciding the rape survivor’s petition, saying “valuable time” has been lost. The bench of Justice Nagarathna and Justice Bhuyan then said they would hear the matter today.

Criticising the “lackadaisical attitude” of the high court, the Supreme Court on Saturday issued notices to Gujarat government and others, seeking their responses on the woman’s plea.

The 25-year-old’s counsel told the Supreme Court that she approached the court on August 7 and the matter was heard the next day. The high court on August 8 directed that a medical board be formed to look into the status of the petitioner’s pregnancy and her health condition.

A medical college examined the rape survivor and submitted its report on August 10. The report, the petitioner’s counsel said, had ruled that the pregnancy can be terminated.

The Supreme Court noted that the report was taken on record by the high court on August 11 but “strangely”, the matter was listed 12 days later, “losing sight of the fact that every day’s delay was crucial and of great significance having regard to the facts and circumstances of the case”.

“In such cases, there must be, not undue urgency, but at least a sense of urgency in such matters and not a lackadaisical attitude of treating it as any normal case and just adjourning it. We are sorry to say and make this remark,” the bench orally said.

The bench also noted that the petitioner’s counsel has informed that the case status of the matter showed that the high court had rejected the petition on August 17, but no reasons were given, and the order was yet to be uploaded on the high court’s website.

The petitioner’s counsel then told the court that she would soon be approaching the 28th week of her pregnancy and added that a fresh medical report should be sought. The court then asked the petitioner to appear before the medical board again.

Following the fresh examination, the Supreme Court today allowed the termination of pregnancy. “Subsequent to the medical procedure to be carried out, in the event the foetus is found to be alive, the hospital is to give all facilities including incubation to ensure the foetus survives. The State shall then take steps to ensure the child is adopted in accordance with law,” the Supreme Court said.