India’s Supreme Court advances abortion rights in major ruling 

The apex court declared that all women are entitled to safe and legal abortion up to 24 weeks. It also other made critical interventions including the recognition of marital rape and the centrality of dignity and autonomy when it comes to abortion access

September 30, 2022 by Tanupriya Singh
Abortion rights India
(Photo: via ACLU)

In a landmark ruling on Thursday, September 29, the Supreme Court of India affirmed that all women are entitled to safe and legal abortion. The three-judge bench comprising Justices DY Chandrachud, Surya Kant, and AS Bopanna issued the verdict after hearing a plea filed by a 25-year-old unmarried woman seeking the termination of her pregnancy at 23 weeks and five days. 

The applicant had first approached the Delhi High Court seeking interim relief. On July 15, the High Court denied the appeal on the grounds that the circumstances of the applicant were not covered under any clauses of the Medical Termination of Pregnancy (MTP) Rules. 

The woman then approached the Supreme Court, which on July 21 granted an ad-interim order allowing her to terminate the pregnancy, subject to a medical board concluding that the procedure would not pose a risk to her life. The court observed that the High Court’s decision had taken an “unduly restrictive” view of the provisions of the MTP Act, specifically Rule 3B which details the categories of women who may terminate their pregnancy between 20 to 24 weeks. 

3B(c) specifies a “change in marital status during the ongoing pregnancy (widowhood or divorce).” Prior to Thursday’s ruling, unmarried women in a consensual relationship were only allowed to terminate their pregnancies up to the 20 week mark. 

In its July ruling, the court noted that that “change in marital status” must be given a “purposive interpretation.” It also highlighted that following an amendment in 2021, the MTP Act had replaced the term “husband” with “partner” – “The use of words ‘woman or her partner’ shows an intention to cover unmarried woman.”

The court concluded that “allowing the petitioner to suffer an unwanted pregnancy would be contrary to the intent of the law enacted by Parliament.” In its ruling on September 29, the Supreme Court made multiple key interventions in the interpretation of the MTP Act. 

Distinction between married and unmarried women “constitutionally unsustainable”

The court stated that the use of the term “woman” in the judgment included “persons other than cis-gender women who may require access to safe medical termination of their pregnancies.” 

The apex court declared that all women are entitled to a safe and legal abortion up till 24 weeks of pregnancy under the MTP Act – “A narrow interpretation of Rule 3B, limited only to married women, would render the provision discriminatory towards unmarried women and violative of Article 14 of the Constitution [equality before the law and equal protection of laws].”

“The law should not decide the beneficiaries of a statute based on narrow patriarchal principles about what constitutes ‘permissible sex’, which create invidious classifications and excludes groups based on their personal circumstances,” the court emphasized.  

“The rights of reproductive autonomy, dignity, and privacy under Article 21 [right to life and personal liberty] give an unmarried woman the right of choice on whether to bear a child, on a similar footing of a married woman.” 

Dignity and autonomy 

In the preceding paragraphs, the court also notes that dignity is a “core component” of Article 21 of the Indian constitution, which deals with the right to protection of life and personal liberty. The judgment goes on to read, “Depriving women of autonomy not only over their bodies but also over their lives would be an affront to their dignity. The right to choose for oneself… forms a part of the right to dignity. It is this right which would be under attack if women were forced to continue with unwanted pregnancies.” 

The court also stated that medical practitioners must not impose “extra-legal conditions on women seeking to terminate their pregnancies in accordance with the law.” These include seeking consent from the woman’s family, documentary proof, or judicial authorization. “It is only the woman’s consent (or her guardian’s consent if she is a minor or mentally ill) which is material.” 

“Reproductive autonomy requires that every pregnant woman has the intrinsic right to choose to undergo abortion without any consent or authorization from a third party,” the court said. It further added that “the right to reproductive autonomy is closely linked with the right to bodily autonomy.” 

The apex court also noted that “it is ultimately the prerogative of each woman to evaluate her life and arrive at the best course of actions, in view of the changes to her material circumstances.” It emphasized earlier in the judgment that “significant reliance ought to be placed on each woman’s own estimation of whether she is in a position to continue and carry to term her pregnancy.” 

Recognition of marital rape 

In one of its most critical interventions, the Supreme Court recognized marital rape in its verdict. Among the categories of women who are allowed to access abortions up to 24 weeks under the MTP Rules are survivors of rape or sexual assault. However, marital rape is not included in the definition of rape under Section 375 of the Indian Penal Code. 

The Supreme Court stated in its ruling that this exclusion was by a “legal fiction.”  “A woman may become pregnant as a result of non-consensual sexual intercourse performed upon her by her husband. We would be remiss in not recognizing that intimate partner violence is a reality and can take the form of rape.” 

“The nature of sexual violence and the contours of consent do not undergo a transformation when one decides to marry.” 

The Court concludes that marital rape must be included in the meaning of rape for the purposes of the MTP Act. “Any other interpretation would have the effect of compelling a woman to give birth to and raise a child with a partner who inflicts mental and physical harm upon her.” 

Abortion access in case of minors

Rule 3B(b) includes minors in the list of categories of women who may seek an abortion up to 24 weeks of pregnancy because, the court notes, “adolescents who engage in consensual sexual activity may be unaware that sexual intercourse often results in pregnancy or be unable to identify the signs of a pregnancy.”

The Supreme Court noted that the Protection of Children from Sexual Offences (POCSO) Act is “gender neutral” and “criminalizes sexual activity” by those below 18 years of age. Under the act, “factual consent in a relationship between minors is immaterial.” The court added, however,  that the act does not “in actuality – prevent adolescents from engaging in consensual sexual activity.” 

The court also spoke to the absence of sexual health education and taboos around pre-marital sex which may not only prevent adolescents from accessing contraceptives, but inhibit young girls from informing their parents or guardians, who play a “crucial role in accessing medical assistance and intervention” in case of pregnancy. 

Under the POCSO Act, if a minor approaches an Registered Medical Practitioner (RMP) for termination of a pregnancy from consensual sexual activity, the RMP is mandated to report the “offense committed to concerned authorities” (the police) under Section 19 of the act. The court stated that minors and their guardians were left with two options: “One, approach an RMP and possibly be involved in criminal proceedings under the POCSO Act, or two, approach an unqualified doctor for a medical termination of pregnancy.” 

The court stated that it was “necessary to harmoniously read both the POCSO Act and the MTP Act… We clarify that the RMP, only on request of the minor and the guardian of the minor, need not disclose the identity and other personal details” in the information provided under Section 19(1) of POCSO Act. 

The RMP is also “exempt from disclosing the minor’s identity in any criminal proceedings which may follow” from the RMP’s report under the POCSO Act. The court added that this interpretation would “prevent any conflict between the statutory obligation of the RMP… and the rights of privacy and reproductive autonomy of the minor under Article 21 of the Constitution.” 

Expanding the understanding of reproductive rights 

Importantly, the court noted that, “the ambit of reproductive rights is not restricted to the right of women to have or not have children. It also includes the constellation of freedoms and entitlements that enable a woman to decide freely on all matters relating to her sexual and reproductive health… Women must also have the autonomy to make decisions concerning these rights, free from coercion or violence.” 

While highlighting India’s obligations under international covenants, the court also emphasized the obligations of the Indian state towards its own citizens – “[t]he state has a positive obligation under Article 21 to protect the right to health, and particularly reproductive health of individuals. In terms of reproductive rights and autonomy, the state has to undertake active steps to help increase access to healthcare (including reproductive healthcare such as abortion).”