New Delhi: In a significant judgment, the Supreme Court on September 29 held that all women – both unmarried and married – are equally entitled to safe and legal abortions for pregnancies in the term of 20 to 24 weeks.
In a bench led by Justice D.Y. Chandrachud, the court widened the interpretation of provisions under the Medical Termination of Pregnancy (MTP) Act and Rules in a progressive manner.
Referring to Rule 3B of the MTP Act – which laid down specific categories of women whose pregnancy can be terminated up until a period of 24 weeks – the top court noted that a “restrictive and narrow interpretation” of this provision would render it close to “holding it unconstitutional”.
The order by the three-judge bench comes after a plea by a 25-year-old woman who had approached the Delhi high court seeking to terminate her 23 weeks pregnancy, which was denied. The woman, who was in a consensual relationship, had said that her partner refused to marry her.
The Delhi high court’s division bench of Chief Justice S.C. Sharma and Justice Subramanium Prasad had observed that the provisions under the MTP rules did not cover pregnancy of an unmarried woman resulting from a consensual relationship. The apex court, however, observed that the “artificial distinction” between married and single women is “not constitutionally sustainable”.
Terming this a ‘fantastic judgment’, Dipika Jain, director of the Centre for Justice, Law and Society (CJLS) at the Jindal Global Law School, noted how until now, the MTP Act and Rules enlisted specific categories of women including mentally ill women, persons with disabilities, persons caught in humanitarian disasters, etc., but not ‘unmarried women’. Hence, this matter was challenged in the apex court.
Emphasising how the decision has paved the way for anyone in India to now access abortion till 24 weeks, she said, “There is almost no restriction, because it has read the categories of women very broadly.”
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While noting some takeaways from the apex court’s decision, lawyer Anubha Rastogi told The Wire: “Firstly, it clarifies that if there’s something that’s available for pregnant married women, then it needs to be available for any woman irrespective of her marital status. Second, this judgment is clarifying that in cases where a minor engaging in consensual sex approaches a registered medical practitioner (RMP) for termination of pregnancy, then the RMP does not have to report the identity of the minor seeking termination of pregnancy, as mandated by Section 19(1) of the Protection of Children from Sexual Offences (POCSO) Act.”
The judgment in paragraph 81 stipulates that on request of the minor or the minor’s guardian, the RMP would not have to disclose to police the minor’s identity or any other personal details. In doing so, it stressed upon the need to prevent any conflict between the POCSO provision versus the right to privacy and reproductive autonomy as enshrined under Article 21 of the Indian Constitution.
Crucially, the order also noted that doctors “must refrain from imposing extra-legal conditions on women seeking to terminate their pregnancy in accordance with the law”.
Rastogi, who is also associated with the Pratigya Campaign for Women, added that “[t]his judgment also recognises that as far as medical termination of pregnancy is concerned, the reason of pregnancy as a result of rape includes forced sexual intercourse taking place within a married set-up or marital rape.”
While the apex court is yet to decide on whether the offence of marital rape is recognised as one by the Indian law, experts concur that the judgment sets a crucial precedent by recognising it as reason for accessing abortion.
Jayna Kothari, senior advocate and co-founder of the Bengaluru-based Center for Law and Policy Research, added, “This will make the fight for the removal of the exception of marital rape under Section 375 of the IPC easier.”
Also read: Six Themes That Supreme Court Touched Upon in Verdict on Right to Legal Abortion
Paving the way for rights-based jurisprudence, bodily autonomy and decriminalisation
Pointing out how there continues to be pervasive stigma and shame when single or unmarried women get abortions, Kothari noted the “huge significance” of the court “recognising this as a form of discrimination under Article 14 of the Constitution”.
Former Patna high court judge, Justice Anjana Prakash, told The Wire that she welcomed the judgment “[b]ecause I am of the view that a woman must have full autonomy over her body, her life, her finances, planning her and her family’s future, and so on. This also naturally means she has a right to decide when and whether she wants to have children.”
Meanwhile, lawyer Rastogi and professor Jain opined that the order sets a rights-based jurisprudence on abortions. The decision observed that reproductive autonomy in India is a fundamental right. “So every woman has the right to terminate a pregnancy, keep a pregnancy, have access to sexual health and education, and have access to contraception. This judgment has spelt it out. It’s not just an abortion judgment, it’s one that looks at sexual, reproductive and health rights,” Jain said.
Stressing upon this, Rastogi added that the judgment “has brought in not only privacy, but also the right to life, health, bodily autonomy, and all such aspects”.
Both legal experts also pointed to the expansive scope of the term ‘woman’ as anybody who has the capacity to get pregnant, with the order paving the way for inclusion of transgender persons.
The judgment observed: “We use the term “woman” in this judgment as including persons other than cis-gender women who may require access to safe medical termination of their pregnancies.”
“We arguably will have one of the most liberal abortion laws in the world, and this judgment has paved the way for decriminalisation of abortion,” Jain said.
