Constitution, not Manusmriti

The Gujarat High Court’s refusal to grant permission for termination of a seven-month-old teenage pregnancy is wrong and callous, and against earlier orders passed by higher courts in similar cases. The under-17 girl had hidden her pregnancy, as many girls in such situations do, but had approached the court after the 24-week threshold for legal termination. The judge adjourned the case for more than a week and made the most unwelcome and objectionable remarks, invoking the Manusmriti. The girl, being a minor, is a “statutory rape survivor” and is entitled to a legal abortion. The Delhi High Court had last year allowed the abortion of a 33-week foetus saying the “mother’s choice is ultimate”. The Supreme Court has also stated that women have the right to safe abortion. The Gujarat High Court order went against these precedents, lacked empathy, and was insensitive. 

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The judge told the girl that 14-16 years were the normal age for girls to get married and “by the time they attained 17 years, they would deliver at least one child …in her mother’s and grandmother’s times”. He approvingly quoted the Manusmriti to support his argument. “It is there in Manusmriti… read it for this once,” he said. It would be difficult to believe that such an opinion would come from a court functioning under the Constitution of India. Justice Samir Dave not only openly questioned the law of the land and previous court orders on marriage and abortion with his pronouncements but also violated the Constitution on which he was sworn in as a judge. It is the Constitution that he has sworn his faith and allegiance to and should uphold, not the Manusmriti. 

The ideas in the Manusmriti are antithetical to the ideals of the Constitution. The rights and entitlements of a person in India are to be determined on the basis of the Constitution and not the infamous text of the past which advocated and legitimised inequality and injustice. There cannot be a bigger travesty than deriving the rights of a woman from a book that said women did not deserve freedom and judging them on that basis. The Manusmriti is emerging as the guiding gospel of the right wing and Hindutva groups. But when a court praises its tenets and recommends that they be followed, it is unfortunate. A judge has no right to endorse the Manusmriti on a legal or human issue. The Supreme Court should take note of Justice Dave’s pronouncements, as it did with an Allahabad High Court order endorsing astrology, and take appropriate action. The girl should get justice, too.