Home case analysis Jacob George vs. State of Kerala (1994)

Jacob George vs. State of Kerala (1994)

June 11, 2024

The article is written by Nishimita Tah . This article deals with the case of Jacob George vs State of Kerala in an exhaustive manner by giving emphasis upon its facts, issues, contentions of the parties and the judgement passed by the Hon’ble High Court of Kerala and the verdict of the Supreme Court in the appeal preferred before it. The author also took the initiative to give a detailed analysis of the judgement in a clear and precise manner.

Introduction.

The usage of many methods of birth control and abortion by women has to be tracked down throughout history. Abortion is not only an issue of techno-therapeutic but the blueprint of conflicts in the broader spectrum.

In 1971, abortion of the unborn was announced as a criminal offence. Section 312 to Section 318 of the Indian Penal Code,1860 (IPC) deals with the offences relating to the Children. Section 312 of IPC, entails the voluntarily causing of child miscarriage which shall not be an excuse in favour of good faith for the purpose to save the life of a woman. The offence of punishment with imprisonment for a term extendable to three years along with fine. According to explanation under Section 312, it clearly states that if a women herself takes the decision to opt for the miscarriage or Induced abortion shall be criminally liable with fine for the committed offence

The relationship between Medical Termination of Pregnancy Act and Indian Penal Code was analysed by R.M Sahai J. and B.L.Hansaria J in the case of Dr. Jacob George vs. State of Kerala (1994) as follows “After the enactment of Medical Termination of Pregnancy Act, 1971, the provisions of the Penal code relating to miscarriage have become inferior to this act because of the non-obstante clause under Section 3 of Medical Termination of Pregnancy act, 1971 which permits miscarriage or abortion by a registered practitioner under certain circumstances.” However, a detailed explanation by the Kerala High Court on theories of Punishment has been analysed in the present case of Dr. Jacob George Vs State of Kerala (1994).The article also focuses on the critical analysis of the judgement by both the High Court and the Hon’ble Supreme Court of India.

Details of the case

Name of the Case

Dr. Jacob George Vs State of Kerala

Type of case

Criminal Appeal

Date of judgement

13/04/1994

Name of the court

Supreme Court of India

Equivalent citations

1994 SCC (3) 430; JT 1994 (3) 225; 1994 SCALE (2) 563

Bench

Justice B.L. Hansaria and Justice R.M. Sahai

Parties to the case

Dr. Jacob George (Petitioner)

State of Kerala (Respondent)

Relevant statutes and provisions

Section 312 of Indian Penal Code,1860

Section 201 of Indian Penal Code,1860

Section 357 of Code of Criminal Procedure, 1973

Medical Termination of Pregnancy Act, 1971

Probation of Offenders Act, 1958

Facts of Jacob George vs. State of Kerala (1994)

The victim Thankamani married Sathyan. They lived as a married couple for about a year and half and a son was born out of wedlock. After six months, Sathyan left Thankamani without any prior information. They both reconciled three months before the death of Thankamani, who was expecting the baby for the second time. Thankamani took the decision to abort the baby. The victim informed her mother regarding the termination of pregnancy since she refused for another child. The mother and her brother in law told about the decision of Thankamani.The brother in law knew the clinic of Dr. Jacob George was established in Nilambur where Thankamani abortion was done.
However, on 14th January, 1987 brother-in-law and Thankamani went to the clinic and the matter of Abortion was discussed with Dr. Jacob George. On the same day, Thankamani was admitted and Dr.Jacob agreed for the abortion. Abortion of Thankamani was done on payment of Rs 600 of which Rs 500 was paid immediately as an advance before the termination and the remaining amount of rupees 100 was paid after the successful operation on 15th january,1987. On the same date around 10 PM Thankamani was taken to the operation theatre and at midnight Dr. Jacob George said that the operation was successful. Brother-in-law found Thankamani unconscious. On the next day , Thankamani regained consciousness around 5 AM in the morning and asked for water. Brother-in -law brought a cup of tea which Thankamani found difficult to drink and her body started shivering. The information was given immediately to Dr. Jacob George, he came with a nurse. When the medical examination started her overall condition of her health found to be deteriorating.
Suddenly, Froth came out from her mouth and Thankamani could not survive. After some time after Thankamani’s death, police were informed and the incident was reported. The charge sheet was made under Section 312 and Section 314 admitted under Indian Penal Code. However, the learned trial court held that charges had not been established beyond the reasonable doubt . Therefore, Dr.Jacob George was acquitted. Later, Dr. Jacob George filed a special leave petition before the Hon’ble Supreme Court under Article 136 of the Constitution.

Issues raised

The issue was raised whether the quantum of sentence given by the High Court can be reduced or not.
Can a homoeopathic doctor who negligently performs the termination resulting in death be charged and sentenced under the virtue of Section 314 of IPC?

Arguments of the parties

Petitioners

The doctor argued that the women arrived at his clinic with injuries from an attempted self inflicted abortion.
The petitioner argued that since the Medical Termination of Pregnancy Act of 1971 was passed , the provisions of the IPC that violate the criminal offence related to miscarriage have become subordinate to this code. Thus, the grounds carry on with the question of sentence.
The petitioner also argued that he has undergone two months of imprisonment. The learned counsel urge for reduction of imprisonment period because he has already undergone for months.
Further, he prayed for the allocation for the benefit of the Probation of Offenders Act (1958). It was decided in the case of V.Manickam Pillai vs. State (1972) by the Hon’ble Madras High Court, where the Hon’ble High Court granted such benefits according to the Probation of Offenders Act ,1958.

Respondent

It was argued that the autopsy report clearly indicates the perforation of the deceased uterus was done by Dr. Jacob. The person admitted and he is guilty that Dr.Jacob was the person who took the decision of taking the deceased case into admission for termination of her pregnancy.

Laws discussed

The distinction between Section 312 and Section 314 of the IPC is not applicable to our purpose in the present case.“Causing of miscarriage” and “ the punishment to the person who has the intention to cause miscarriage of a woman” embodied under Section 312 and Section 314 of Indian Penal Code,1860. The Sections specify that the act committed by Dr.Jacob George was found guilty after setting of acquittal order by the Hon’ble High Court of Kerala.

Overview of Section 312 IPC

The ingredients of Section 312 under IPC,1860 are:

Voluntarily causing a woman with a child to miscarry.
Miscarriage for the purpose of saving the life of a woman as a cause of good faith is not acceptable under the prescribed law.
If the miscarriage caused by the woman is quick with the child which causes the death of a woman.
Punishment for miscarriage done with a cause of good faith for saving the life of a woman is imprisonment for 3 years or fine or both.
Punishment for miscarriage of women is quick with child is imprisoned for 7 years and fine

The observation of the lawmakers while the enactment of the Indian penal code states that with respect to the offence related to abortion, it is important to indulge into a strong apprehension that this offence shall be abusive to vicious purposes. The criminal offence of Abortion isn’t accepted in society and leaves a strain on the dignity of the families. The power of bringing false accusations in the present case is imposed by unethical men. This law provides conviction by taking care of respectable families to harvest profit from repealing these offences from society. The code of criminal procedure lays down rules to prevent such heinous offences.

Thus, Section 312 of the code clearly bifurcates the sense of voluntary causing miscarriage into two circumstances: that is when a woman is “with child” and “quick with child” . According to the judicial interpretation, A woman is measured to be in an earlier state as soon as the development begins and the latter circumstance “quick with child” specifies the situations when the action is felt by the mother. In other words, speeding up with a child to get aborted is a perception by the mother that the movement of the foetus is in progress.

Overview of Section 314 IPC

The ingredients of Section 314 denoted under IPC are:

An intention to cause miscarriage of a woman with child
Any act which causes the death of a woman
The act is punishable with imprisonment to 10 years and liable with fine.
If the act is done without consent, the act is punishable by life imprisonment

The explanation expressed under the Section states that it is not necessary that the offender should be aware that the act is probable to cause death.

Thus, in the case under Section 314, the High Court upheld the award of conviction because apparently the case didn’t cover any exception mentioned under the Medical Termination Pregnancy Act,1971. The visualisation under the Section does not only impose a sentence of imprisonment only but also permits an amount as a fine. The High Court imposed rigorous imprisonment and a fine of Rupees 5000.

Section 3 of the Medical Termination Pregnancy Act,1971

It indicates a non obstante clause which permits abortion or miscarriage by a registered practitioner under certain situations. The permission can be granted on three grounds:

In case of life risk of a woman physically or mentally.
Arise of Unsafe pregnancy from sex crime like rape or intercourse with a lunatic woman.
In case of substantial risk the child born would suffer from deformities and health risks.

Hari Singh vs. Sukhbir Singh

In the case of Hari Singh vs. Sukhbir Singh(1988) , Justice Shetty spelled on behalf of a judge Bench that the essence of imposing a fine to reassure the victim that she has not been ignored by the eyes of Criminal Justice System. The measure of responding to a serious crime by taking instant action as well as reconciling the victim with the offender. The constructive approach to crimes recommends that the Session court should exercise this power to meet the end towards the justice of an innocent. The court also takes care that the amount of compensation awarded must be reasonable.

Manickam Pillai vs. State of Madras

The petitioner relied on the case of Manickam Pillai vs. State of Madras(1972) . He argued that in the cited case, he is also the doctor because due to the error of Judgement towards the patient, the probation was extended. If the probation has been extended in the particular cited case then the Petitioner in the present case should also be released with Probation.

The Hon’ble Supreme Court stated that in the cited case of Manchikampillai, the doctor was a qualified practitioner, so the precedent was not extended. Further, The Supreme Court pointed out that the present case Dr.Jacob George Vs State of Kerala does not fit to be released on probation.

Judgement in Jacob George vs. State of Kerala (1994)

The present Judgement of the case has been delivered by Justice Hansaria. The verdict also states that the Court would consider it as negligence if a professional surgeon made constant surgical errors. In the present case the Court also expressed that when the service provider knew he lacked the medical skills to perform a termination of pregnancy, the Hon’ble Court sentenced the doctor under the judicial bars and imposed a fine of Rupees 1 lakh.

Decision of the Sessions Court

The Trial court upheld that charges had not been established perfectly which shows beyond reasonable doubt. Dr. Jacob was awarded 4 years of Rigorous imprisonment and asked for 5000 as a fine . Further, it was also stated that rupees 4000 shall be paid to the living son of the deceased towards compensation for the loss of Thankamani. The Petitioner has been found guilty after the acquittal order was set by the learned Sessions Judge before the Hon’ble High Court of Kerala. The Hon’ble High Court had also taken Suo Motu cognizance against the order of acquittal.

Judgement of the High Court

The Hon’ble High Court held that the petitioner‘s character, gravity, and the nature of offence, does not deserve the benefit of probation. Further, the Hon’ble High Court urges that if an homoeopathic expert takes the responsibility to operate on a pregnant lady and prick her uterus by stating as Abortion, the petitioner doesn’t deserve for the benefit of probation. The case would have been taken into consideration if the operation was done by a trained surgeon in question of consent of a victim resulting in death of the patient.

Judgement given by the Supreme Court

The Hon’ble Supreme Court held that Dr. Jacob George was not a professional and had lack of medical practice and knowledge of medical termination of pregnancy conducts surgery shall be charged under Section 314 of IPC. The Supreme Court also held that this case is not fit to extend probation. However, the Supreme Court held rigorous Imprisonment for two years with a fine of Rupees 1 lakh.

The Hon’ble Supreme Court also held that the amount of compensation shall be upgraded to 1 lakh Rupees. The compensation shall be submitted before 6 months within the stipulated time to the Nationalised Bank in the name of the Thankamani’s surviving son. It must be reported before the registrar with a demand draft of 1 lakh rupees. The Court also stated that if the compensation is not paid within 6 months, he will be continuing with the imprisonment.

Rationale behind this judgement

The reason behind the Judgement was to protect and safeguard the society from the burglary of dangerous people settled in the society to housebreak the life of any innocent. The Theoretical form of protection may not be seen as taking the approval from the society but if the matter crosses the border of immediate action Judiciary plays its role in the way it thinks it’s correct. The theory of Retribution cannot do justice in full because, under Section 314 of IPC, the sentence provides imprisonment for a term which is extendable to 10 years. If an offence like miscarriage is caused with the consent of the woman willing to undergo the termination of pregnancy, the death penalty is not provided as punishment. The retributive theory of the punishment is completely taken care of by the detrimental effect which the conviction will wholly affect in his homoeopathic practice of the petitioner.

Analysis of Jacob George vs. State of Kerala (1994)

The Court imposed criminal penalties based on the negligence committed by the doctor by not performing abortion with professional care and ending up with unregistered surgical tools. Despite Dr.Jacob being a qualified and registered Medical practitioner would have faced medical malpractice but not considered as the criminally punishable offence. However, the court reduced the doctor’s sentence of four years rigorous imprisonment and a fine of Rs. 5000 to rigorous imprisonment for two years with fine of Rs 1 lakh.

Right to life of an unborn child under Article 21

Under the umbrella of the Indian Constitution,1950 Article 21 signifies the right to life. The Article carries a heavy implication on the Right to Life. According to Taylor’s Principal “An unborn child growing in the womb of a mother is also taken as a Human Being.” In regard to human life, the interpretation of Article 21 has been broadly justified by the Indian judiciary. Right of an unborn child is a controversial issue encompassed under the purview of Article 21. In India, the legal position of India related to the rights of unborn children can be tracked down with past cases.

Kharak Singh vs. State of U.P (1963)

In this case of Kharak Singh vs. State of U.P (1963), Hon’ble Supreme Court majorly focused on the right to life under Article 21 of the Indian constitution. The court held that the right to life includes the right to live with human dignity and later it also inserted the right to health under the purview of article 21.

Unnikrishnan vs. State of Andhra Pradesh (1993)

In this case of Unnikrishnan vs. State of Andhra Pradesh (1993), the Hon’ble Supreme Court held that the right to the medical care of both the mother and the unborn child was inserted under the right to life stated under Article 21 of Indian constitution.

Suchita Shrivastava vs. Chandigarh Administration (2009)

The issue of the rights of an unborn child was raised in this case. The Hon’ble Supreme Court held that the protection given to the rights of an unborn child to their life and personal liberty is enforced under Article 21 of the Indian constitution. Further, it was stated that the responsibility of the state is to protect the life and health of a pregnant woman and the unborn child she is carrying in her womb. It was also held that the right of an unborn child is not absolute but should be balanced with the right of the mother’s health was held in the case of Suchita Srivastava vs. Chandigarh Administration (2009).

Indulekha sreejith vs. Union of India & ors (2021)

In this case of Indulekha Sreejith vs. Union of India and Ors (2021), the Kerala high court observed that if any stage of pregnancy results to alive baby diagnosed with foetal abnormalities is without any threat to the life of mother, under the scope of article 21 of the constitution the reproductive choice of the mother is one of the ingredients guaranteed under the fundamental rights which gives the right of the unborn to be born.

The Government Of India launched the acts to combat Illegal Abortion. The enactment of the Pre Conception And PreNatal Diagnostic Techniques Act,1994 and The Medical Termination Of Pregnancy Act,1971 with a motto to reduce the practice of Illegal Abortion and the outcome of maternal mortality and morbidity. The justification on Abortion done for the good faith for saving the life of the mother was purposely signified by the IPC. Under Section 3(2)(b) of MTPA states that not less than two registered medical practitioners must be in good faith before continuation of pregnancy of any woman who falls within the ambit of risk towards life, grave injury to her physical health and grave injury to her mental health. Cases like X vs. Union Of India (2017), Mamta Verma vs. Union Of India (2018) , Meera Santosh Pal vs. Union Of India (2017) , Sarmishtha Chakraborty vs. Union Of India (2018), in these cases the court gave permission for 20 weeks termination of the pregnancy taking the risk of grave injury of mental health into account.

An American Philosopher, Jurist, and Scholar named Ronald Dwork, made a detailed study on the issue of Abortion. In his Research and study, he stated that “The development of the foetus is granted as the moral person from the moment of his conception. Thus, the unborn child has the right to live. The practice of abortion is considered Murder.” According to the World Health Organization (WHO) Report it states that the procedure of Induced Abortion is simple and commonly used under Healthcare services. Every year, almost half of the pregnancies, approximately 121 million, are unintended pregnancies that end due to Induced Abortion.

Conclusion

In the present case, the Supreme Court refused to give the benefit of probation under the Probation of Offenders Act (1958) to the petitioner. On behalf of the petitioner, it was submitted to grant for probation which removes the disqualification to get convicted because he was found guilty under Section 12 of the Probation of Offenders Act, 1958. The court increased the award from rupees 5000 to 1 lakh rupees which was to be deposited within a six months time period.

Hence, it is safe to say that the reformative theory of punishment is the only expected outcome of undergoing a sentence. The court decided that the petitioner must undergo imprisonment so that he accepts his mistake while being in medical practice. The purpose behind the reformative theory of punishment is that the petitioner inside the prison walls accepts the trauma and loss during the period of bar so that he expects to take caution and care in future practices.

Frequently Asked Questions (FAQs)

Is abortion legal in India?

Yes, it is legal. The Medical Termination of Pregnancy Act, 1971 allows the medical termination of pregnancy till 20 weeks of conception for all women and 24 weeks of conception in few circumstances where the women go under certain unavoidable situations.

Can an 18-year-old girl get an abortion?

Yes, but the girl’s guardian’s consent is mandatory. According to the Medical Termination of Pregnancy Act,1971 defines the “guardian” as a person having the care of the person of a minor or a lunatic.

Is there a need for a husband’s consent for abortion?

No, if the person has attained the age of 18 or above, she does not need husband’s consent for abortion.

What is the difference between probation and parole?

Probation is an alternative sentencing that allows the offender to stay convicted of a crime while remaining in the community instead of moving to jail. However, Parole is an early release of an offender but he remains in legal custody.

References

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