The state has missed two deadlines set by the Bombay High Court to present guidelines that would balance the requirements of the Medical Termination of Pregnancy (MTP) Act, 1971 and Protection of Children from Sexual Offences (Pocso) Act, 2012 in a manner that the privacy of minors in a consensual relationship seeking abortion is protected.The amended MTP Act guarantees women the right to privacy and has a provision to fine doctors who reveal their name or other details. The Pocso Act protects children under 18 years from sexual assault/harassment and child pornography.“Pocso requires doctors to report cases to the police even if the act was consensual,” said Dr Nikhil Datar, a gynaecologist and health rights activist who previously fought for amendments to the MTP Act and is now highlighting the conflict between the MTP and Pocso Acts when the victim is older (between 15 and 18) and pregnant after consensual sex. The state was asked to frame the guidelines as a part of an ongoing case filed by Dr Datar. Incidentally, in 2022, the Supreme Court recognised the conflict between the two Acts and stated that minors in consensual relations should be given privacy as per the MTP Act.In Mumbai, the issue emerged in May 2024 when two gynaecologists, including Dr Datar, moved the high court after a minor girl sought abortion after consensual sex with her same-age male friend. Their plea sought permission to perform MTP without revealing the girl’s identity to the police, and a prayer for guidelines so that doctors don’t have to return to the courts with similar requests. “Girls expect confidentiality from doctors, but mandatory reporting laws undermine this, exposing both the girl and boy to social and legal consequences,” he said.On May 7, 2024 an HC bench of Justices Gautam A Ankhad and Ravidra V Ghuge gave an interim order allowing the girl privacy and directing the state to work on the guidelines along with the two doctor-petitioners. In Dec 2024, the state issued a GR that listed the recent judgments, but didn’t provide specific guidelines.In Jan, Dr Datar forwarded his suggestions to the state: “There could be a cool-off period for those who are 15 to 18, and doctors could seek a written consent of the guardian for not disclosing the name and details of the minor girl to the police.”In July, he moved the court when another minor sought abortion saying she had had consensual sex with a boy. “When I sent a note to the local police station without revealing the girl’s name, the police turned up at my clinic and spent hours seeking her details,” he said.In the July case, justices Dr Neela Gokhale and Revati Mohite Dere said, “We are quite surprised that despite the clear finding of the supreme court as well as of this court, repeatedly holding that in the facts of such cases, the identity of the minor girl need not be insisted upon to be revealed, the doctors concerned are compelled to approach this court for such permissions as the police insist upon the doctors to reveal the name and identity of the minor victims.“Thereafter, on Aug 4, the first case came up for another hearing. The justices said, “We are of the view that too little has been done by the state government. More than 15 months have lapsed after the first direction of this court dated May 7, 2024.”The bench set Sept 8 deadline for the state, but the latter failed to place the draft and asked for more time. “By way of last chance and indulgence,” the court has posted the matter for Sept 29.
