A two-judge bench of the Supreme Court on Wednesday delivered a split verdict on a plea by the Centre to recall its order, passed earlier this week, allowing a married woman to terminate her 26-week pregnancy in what could become a landmark case on abortion and women’s reproductive autonomy in India.

Justices Hima Kohli and BV Nagarathna had, on Monday, allowed the 27-year-old mother of two to end her pregnancy, but two days later, sharply differed on whether the abortion could go forward, after a medical report said the foetal heart would have to be stopped as part of the procedure.

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The bench also took strong exception with how the Centre approached a bench headed by Chief Justice of India Dhananjaya Y Chandrachud on Tuesday and obtained a stay on the October 9 order.

The recall petition will now be placed before the CJI to be given to an appropriate bench for adjudication.

Justice Kohli said she was not willing to proceed with the earlier decision and wondered which court could ask to stop the heartbeat of a foetus that has life. “Speaking for myself, I would not,” she said.

She also criticised the medical board comprising doctors from the All India Institute of Medical Sciences (AIIMS) for initially filing a “hedged and ambiguous” report and wondered why the doctors could not have been candid as one of them has been in their latest communication.

“Having regard to the information contained in the October 10 email addressed by AIIMS professor of department of obstetrics and gynaecology, one of us (justice Kohli) is not inclined to permit the petitioner to terminate pregnancy,” the order said.

But justice Nagarathna said she respectfully disagreed, observing that the woman’s plea was decided by the court with a detailed order on October 9 and the petitioner was determined about her decision to not proceed ahead with her pregnancy.

“Having regard to the concrete determination made by the petitioner, I find that her (the woman’s) decision must be respected. This is not a case where the question of viable baby being born or unborn is to be really considered when the interest of petitioner has to be given more balance and preference,” she said in her order.

On Monday, the top court allowed the woman to terminate her third pregnancy, recognising a woman’s right over her body and the autonomy to decide that she was unfit to bring up a child considering her weak financial, mental and psychological situation. The woman, a resident of Delhi, had told the court that she was unaware of her third pregnancy due to a disorder called lactational amenorrhea, when a woman is not menstruating while fully breastfeeding was suffering from post-partum depression.

On Tuesday, a bench headed by the CJI directed that the abortion be deferred after the Centre argued that the abortion was recommended despite the medical board saying the foetus had a viable chance of being born and “they would have to conduct a foeticide”.

The recall application by the Centre was filed after one of the doctors of the medical board said that going ahead with the abortion posed a dilemma for the doctors as the foetus was found to be healthy and normal. Ending pregnancy at this stage would result in death of foetus and if found alive, the child would suffer from permanent physical or mental disability.

During the hearing on Wednesday, the judges came down heavily on the Centre.

“When one bench passes an order, without any pleading (filing of an application), how do you approach the 3-judge bench (headed by the CJI). We do not appreciate this conduct on behalf of Union of India. In the absence of pleading, how could you disturb the court of the CJI. What we are doing today we could do yesterday if you moved an application. The CJI would have surely constituted this bench,” justice Nagarathna observed

She expressed concern over a precedent being set by Centre. “Imagine if private parties resort to such precedents, it will result in breakdown of the system.”

Justice Kohli agreed. “Perhaps you could have made an application with the same alacrity and we are sure the CJI would have constituted a special bench. In this case, 26 weeks have already passed. It was just a question of a single day,” she said.

The judges criticised the medical report.“If the doctor could be so candid in two days short of the earlier report, why was not the (earlier) report more elaborate and more candid?” the bench asked, adding, “Why were they being ambiguous in the earlier report?”

The court also asked the woman to appear and considered her affidavit where she affirmed that she did not intend to keep the baby. “I have made a wilful, conscious decision not to keep the baby,” her affidavit said.

During the hearing, additional solicitor general Aishwarya Bhati, appearing for the Centre, referred to the medical opinion. “Once there is a viable baby on the other side, my respectful submission would be that your lordships may not give absolute primacy to her choice and her autonomy of exercising her reproductive rights,” she said.

She also said if the petitioner was willing to continue with the pregnancy, once the child is born, the Centre would help in the adoption of the child, and pointed out that the Medical Termination of Pregnancy (MTP) Act allowed abortion only in two exceptional situations where there is grave danger to the foetus or the mother, and in the present petition, the act was not under challenge.

But the bench was not satisfied with the Centre’s conduct. “Did we pass the order (on Monday) without hearing the Centre or the petitioner. There is a way you can get an order of this Court upturned,” it observed.

The petitioner’s lawyer Rahul Sharma relied on a July 2022 decision where the top court ruled that a woman has a right to safe abortion.

Under the Medical Termination of Pregnancy Act, first enacted in 1971 and then amended in 2021, all women can undergo abortion legally for up to 20 weeks of pregnancy. Between 20 and 24 weeks, women can terminate their pregnancy on account of mental anguish, rape, assault and health complications, among others reasons.

In recent years, the Supreme Court has expanded the horizons of abortion rights, most recently in September last year, when it removed a distinction between married and unmarried women, recognised the rights of transpeople, and recognised that significant reliance in deciding such cases ought to be placed on a woman’s own estimation of whether she is in a position to continue and carry to term her pregnancy.