Unexpected ‘Two fold ‘Supreme relief’ to Doctors under #POCSO Act related to disclosing identity of the child. Adv. ROHiT ERNADE. ©

 Unexpected ‘Two fold ‘Supreme relief’ to Doctors under #POCSO Act related to disclosing identity of the child..

(But then problem would be, what to be reported and how ?)

Adv. ROHiT ERNADE. ©

In a landmark judgment, a three-judge bench of the Supreme Court expanded the interpretation of a section of the amended Medical Termination of Pregnancy Act (MTP) that gave only certain categories of women the right to terminate pregnancies between 20 weeks and 24 weeks, enlarging the right of women to have abortions. The court held that the law cannot discriminate between married and unmarried women.

Case Details : 

X V/s. The Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi & Anr. Civil Appeal No 5802 of 2022 (Arising out of SLP (C) No 12612 of 2022). judgment Link : https://main.sci.gov.in/supremecourt/2022/21815/21815_2022_2_1501_38628_Judgement_29-Sep-2022.pdf

 

   Lets’ see what their Lordships held about POCSO Act, but before that lets see in nutshell about the legal background. 

The rule 3B of the Amended Acts was under consideration before the Bench and the provision may be read as under :

3B. Women eligible for termination of pregnancy up to twenty-four weeks.— The following categories of women shall be considered eligible for termination of pregnancy under clause (b) of subsection (2) Section 3 of the Act, for a period of up to twenty-four weeks, namely:- (a) survivors of sexual assault or rape or incest; (b) minors; (c) change of marital status during the ongoing pregnancy (widowhood and divorce); (d) women with physical disabilities [major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016 (49 of 2016)]; (e) mentally ill women including mental retardation; (f) the foetal malformation that has substantial risk of being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped; and (g) women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the Government.” .

If we peruse the Rule 3B, it would deprive unmarried women of the right to access safe and legal abortions between twenty and twenty-four weeks if they face a change in their material circumstances, similar to married women. The bench was comprising of Hon. Dr. Dhananjay Y. Chandrachud, A.S. Bopanna  & J.B. Pardiwala JJ and the judgment that runs into 137 paras and divided into 8 parts (A to I) was delivered by Hon. Dr. Dhananjay Y. Chandrachud.

Why the POCSO Act has been touched ?

Much has been written and appreciated  about this judgment and the right that has been recognized irrespective of marital status of the Women. However, from the perspective of Doctors or Registered Medical Practitioners (RMP), Hon. Apex Court has also touched the another important enactment i.e. The Protection of Children from Sexual Offences Act 2012 (POCSO). The POCSO Act was enacted to protect children from offences of sexual assault, sexual harassment and pornography

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 and Failure to report, as mandated by Section 19, is a punishable offence under Section 21 of the POCSO Act. 

It has been observed that 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. 

But here comes the practical problem or situation that most of the RMPs go through. 

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. It has been thus observed that we cannot disregard the truth that such activity continues to take place and sometimes leads to consequences such as pregnancy.

Why Minors and Guardians hesitate to disclose the Crime ?

An adolescent and her guardian may be wary of the mandatory reporting requirement as they may not want to entangle themselves with the legal process. It has been observed that  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. Neither the POCSO Act nor the Protection of Children from Sexual Offences Rules 2012 prescribe a template or a format for the report mandated under Section 19(1). 

What was lacking in Rule 3B(a)

In order to avail the benefit of Rule 3B(a), the woman need not necessarily seek recourse to formal legal proceedings to prove the factum of sexual assault, rape or incest. 

FIR or proving rape charges  is not a precondition for the purposes of the MTP Act

It has been observed that neither Explanation 2 to Section 3(2) nor Rule 3B(a) require that the offender be convicted under the IPC or any other criminal law for the time being in force before the pregnant woman can access an abortion. Further, there is no requirement that an FIR must be registered or the allegation of rape must be proved in a court of law or some other forum before it can be considered true for the purposes of the MTP Act. Such a requirement would be contrary to the object and purpose of the MTP Act. In fact, Explanation 2 triggers the legal presumption as to mental trauma “where any pregnancy is alleged by the pregnant woman to have been caused by rape.” 

Absence of sexual health education in the country :

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 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. 

MTP Act and POCSO Act – Harmonious Construction.

Two fold relief to RMPs. 

Their Lordships observed that 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. 

Relief from disclosing minor’s identity .(But then problem would be, what to be reported and how ?)

It has been observed that for the limited purposes of providing medical termination of pregnancy in terms of the MTP Act, we clarify that the RMP :

a. 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. 

b. 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. 

This Judgment has given relief to RMPs from the harassment if they do not disclose the identity of the minor. 

This judgement has also commented upon taking it cool, when it comes to premarital Sex. This part may invite the criticism from major part of the Society.

However, mandatory reporting of the offense is still a valid Law. Further, one cannot rule out the possibility of taking undue advantage of this section as victim's name will not be disclosed, but whoever's name she takes that should be mentioned. 

There were some messages circulating on the ‘Whatsapp University’ that now RMPs are excluded from reporting of the offense under POCSO Act. But it’s not the case as we see. Nevertheless, I may say that this is the first step wherein some relaxation has been bestowed upon RMPs and that too when not expected !

Adv. ROHiT ERANDE.

PUNE. ©