Senior advocate talks about the ‘failure of the medical profession’ in helping rape victims, society that has lost its moral fibre

What will the lives of “both the children come to be?”. This is the question that haunted senior advocate Indira Jaising when she moved the Supreme Court for ₹10 lakh compensation for the 10-year-old rape victim, who gave birth recently in a Chandigarh hospital. Ms. Jaising told The Hindu that her fight is not just for this one case, but for the rehabilitation and rescue of many such 10 and 12 year olds who are raped and left pregnant, soon to be forgotten and swept under the carpet by a society that has lost its “moral fibre”.

She said that she wants the Supreme Court to understand the larger questions behind the issue of “pregnant children” coming knocking on its doors for justice. Here is what she had to say.

What are the larger questions this case raises?

The medical fraternity is not providing timely intervention for child rape victims who become pregnant. Section 5 of the Medical Termination of Pregnancy Act provides for medical termination of pregnancy as a life-saving measure. Here, in the case of a 10-year-old girl like the Chandigarh rape victim, the termination of her pregnancy is indeed a life-saving measure envisaged under Section 5.

I am not talking about women who are 25 or 35 years old, but when a child is brought before a medical professional, he has to know that her pelvic region is not formed. Her body is not ready for birth passage. She is likely to die giving birth. The situation for the child rape victim is life-threatening. Section 5 allows medical intervention without a court order as a life-saving measure.

But doctors are not doing it despite knowing all this. They just wash their hands off the case. That's why victims of rape – children – come to court. This tragic situation boils down to the failure of the medical profession.

Why do doctors not take responsibility?

The reason is found in Section 312 of the Indian Penal Code. Section 312 makes it an offence to cause a miscarriage. So these medical professionals are worried.

They refuse a 10-year-old or a 12-year-old rape victim who has come to them for help despite knowing that she may die giving birth. That is not correct. Their professional ethics demand that they save these lives.

In the case of the Chandigarh child rape victim, the doctors performed a caesarean as a life-saving measure. So if they could do it now, why did they not do it before the child came to court?

The Chandigarh victim was found to be pregnant when she complained of stomach pain. It is very difficult to detect pregnancy in a child as young as 10 or 12. But why did the doctor not take action under Section 5 as soon as he learnt of her pregnancy.

What is the State's responsibility?

The medical profession has to take responsibility. If a child rape victim needs MTP, she should get the urgent medical care from any private or public hospital in a State. Yes, the State has the responsibility to inform hospitals about the law, about Section 5. There should be standing instructions. The Medical Council of India and medical professional organisations have to pitch in and spread awareness. There should be some sort of a supervisory or monitoring body.

Why have you asked for a compensation for the child rape victim in the SC?

Every State has a rape victim compensation scheme. But they vary. In Goa, the compensation is ₹10 lakh. In Chandigarh it is ₹3 lakh and in some other states it is just ₹1 lakh. Why can't there be a uniform compensation scheme? Why should the amount of compensation depend on which State a victim gets raped? I have pointed out to the SC that the Nirbhaya scheme has funds to the tune of over ₹200 crore. What is the point of all this money if it is not reaching the victims?

Why do you say that cases like Chandigarh are not just tragedies but a sign that society may have lost its moral fibre?

The press release issued by the hospital after the Chandigarh rape victim gave birth said “both children are stable”. Well, both the mother and the child are children. How is it possible for a 10-year-old to mother a child?

The fact that she was raped by her maternal uncle makes the family doubly compromised. The father was so tired of running from hospitals to courts and so upset with all the media attention that I had to move the Supreme Court on my own.

We as a society have the responsibility to bring justice to his (father's) doorstep. But instead, the reality is that the trial in her case has not yet begun and no compensation has been paid to the family.

It is because we have lost our moral fibre and are no longer outraged by the fact that 10 year olds are becoming pregnant. She, a 10-year-old, is in the ICU. The father has refused to accept the baby. What will the lives of both the child-mother and the baby come to? The question is, what next?