The Supreme Court on Wednesday gave a split order on a married woman’s plea seeking termination of 26-week-old pregnancy as one of the judges ruled against the termination, while the other judge said that the woman’s decision to undergo the abortion of pregnancy must be respected.

A two-judge bench of Justice Hima Kohli and Justice BV Nagarathna gave the split decision while hearing the Centre’s plea seeking the recall of its earlier (October 9) order allowing the woman to undergo the termination of her 26-week-old pregnancy.

While Justice Hima Kohli said that her judicial conscience does not allow to permit termination, Justice Nagarathna said that the woman’s decision to undergo termination of her pregnancy must be respected.

Justice BV Nagarathna said that she rejects the Centre’s plea seeking the recall of the earlier order allowing the woman to undergo the procedure of termination of her pregnancy. Justice Nagarathna said that she found no reason to interfere with the “well reasoned order” passed by the court initially on October 9.

As two judges disagreed on the termination of 26-week-old pregnancy, the matter has now been directed to be listed before a larger bench for addressing the issue.

The woman in an affidavit has stated that she does not wish to carry on with her pregnancy due to her mental condition and ailments.

On October 9, a bench of justice Kohli and Justice Nagarathna had directed the woman to visit the AIIMS’s Obstetrics and Gynaecology Department, on October 10, 2023 for the medical termination of pregnancy.

The court had also directed the AIIMS to admit her (the petitioner woman seeking termination of her pregnancy) to undergo the procedure of termination of her pregnancy at the earliest with follow up as may be advised by the treating doctors.

Besides the split decision of two judges on the bench, the issue was not devoid of controversy at a different level.

The Central government on October 10 (at 04.00 pm) approached the Chief Justice DY Chandrachud’s court seeking the recall of the October 9 order passed by the bench of Justice Kohli and Justice Nagarathna permitting the woman to undergo MTP at AIIMS.

Seeking the recall of the order passed a day earlier (on Monday – October 9), on Tuesday – October 10, Additional Solicitor General Aishwarya Bhati apprised the bench headed by the Chief Justice Chandrachud stating that the medical board at AIIMS has opined that the baby had a viable chance of being born, which may cause feticide.

As the bench headed by Chief Justice Chandrachud was told that the doctors at the AIIMS who examined the pregnant woman were in a serious dilemma, the CJI bench directed the AIIMS to defer medical termination of the pregnancy.

However, the Additional Solicitor General Aishwarya Bhati approaching the Chief Justice court was not appreciated by Justice Nagarathna who on Wednesday morning (October 11) reprimanding the Centre remarked that “Each bench of the Supreme Court is Supreme Court.”

Justice Nagarathna told ASG Aishwarya Bhati, “We do not appreciate this. If the Union of India starts doing it, private parties will also start doing this. We are an integral court. Every bench of the Supreme Court is the Supreme Court. We are one court sitting in separate benches. Speaking for myself, I do not appreciate this on the part of the Union of India.”

Justice Nagarathna said: “When one bench of this court decides a matter, without any pleadings whatsoever, how can you move an inter court appeal before a three-judge bench of this court as an interference with the orders of this court.”

Apologising for the turn of events, ASG Aishwarya Bhati sought t to explain the urgency behind the mentioning before the CJI court, telling the bench that she had to make a mentioning before the CJI because as per October 9 order, the doctors were directed to carry out the termination of pregnancy on yesterday itself (October 10).

However, Justice Kohli said that the Union of India could have moved an application for the constitution of a special bench and the matter could have been considered on priority.

Stating that they don’t want such a precedent to be set, Justice Nagarathna said that if private parties too start doing this, there would be a breakdown of the court system.

Thereafter the recall application was ordered to be listed for hearing at 02.00 pm which produced a split order.