Six Themes That Supreme Court Touched Upon in Verdict on Right to Legal Abortion

New Delhi: The Supreme Court delivered on Thursday, September 29 a significant ruling on the reproductive rights of women in India.

The top court was hearing a plea of an unmarried woman who wanted to undergo medical termination of pregnancy at 23 weeks. Her plea was denied by the Delhi high court on July 15.

The apex court bench, comprising Justices D.Y. Chandrachud, A.S. Bopanna and J.B. Pardiwala, made the following observations during the judgment, where it was interpreting the Medical Termination of Pregnancy (MTP) Act and its provisions. Here are a few important issues that the top court raised in its order.

The term ‘women’ is not limited to just cis-women

Firstly, the Supreme Court said that the usage of the term ‘women’ – as far as the legislation is concerned – is not limited to just cis-women or persons assigned ‘female’ at birth and continue to identify as female. It also includes those of other gender identities who have the reproductive system and needs of the female sex, the court said.

“Before we embark upon a discussion on the law and its application, it must be mentioned that 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,” the top court said, Bar and Bench reported.

Marital rape

Second, in a historic verdict, the Supreme Court recognised marital rape. The top court said that the definition of the offence of rape must include ‘marital rape’ for the purpose of the MTP Act.

“Married women may also form part of survivors of sexual assault or rape. A woman may become pregnant due to a non-consensual act by the husband. Sex and gender-based violence in all its form has been part of families,” Hindustan Times reported Justice Chandrachud as saying.

This observation comes against the backdrop of Delhi high court’s split verdict on the issue of criminalisation of marital rape. However, the court made it clear that its definition would apply only to the MTP Act.

As per Section 375 of the Indian Penal Code (IPC), rape includes all forms of sexual assault involving non-consensual intercourse with a woman. However, under Exception 2 to Section 375, unwilling sexual intercourse between a husband and a wife over 15 years of age does not constitute “rape” and thus prevents such acts from prosecution.

In the high court split verdict, only one of the judges favoured striking down the exception in the law; the rest refused to hold it “unconstitutional”. The Supreme Court will now hear the matter.

Therefore, the court in the present case said:

“Since the challenge to Exception 2 to Section 375 of the IPC is pending consideration before a different Bench of this Court, we would leave the constitutional validity to be decided in that or any other appropriate proceeding.”

Also read: Five Years Since ‘Puttaswamy’, Criminalisation of Marital Rape Still Eludes Indian Law

Abortion of married and unmarried women

Third, the apex court said that all women are entitled to safe and legal abortion till 24 weeks of pregnancy under the MTP Act. It added that making any distinction on the basis of their marital status is “constitutionally unsustainable”. (This is the main judgment, during which all other observations were also made.)

“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,” the top court said in its judgment.

This is important because, under Rule 3B of the MTP Act, the upper limit for the termination of pregnancy is 24 weeks for married women, rape survivors, women with foetal malformation, disabled persons and minors. However, the time period for allowing abortion is 20 weeks for widows and unmarried women in a consensual relationship.

Separately, the top court said it would like to add a category of women, who suffer desertion irrespective of marital status, to the seven categories of women eligible to seek abortion till 24 weeks of pregnancy.

The court judgement also added that refugees, who have had to flee their homes for any reason or those who find themselves the victims of a natural or man-made disaster, or otherwise in an emergency, would fall within the ambit of this rule. They may not realise that they are pregnant due to difficulty in accessing medical facilities, the court said.

The Supreme Court. In the foreground is Lakhimpur Kheri, a day after eight people were killed in October 2021. Photos: PTI

Individual autonomy

Fourth, the top court said that the rights of reproductive autonomy, dignity, and privacy under Article 21 give an unmarried woman the right of choice on whether or not to bear a child, on a similar footing as a married woman.

Simply put, it stressed that a woman can become pregnant by choice, irrespective of her marital status.

The top court’s observations on the reproductive rights of women, acknowledging that the circumstances of every woman may be unique, are noteworthy.

This is also significant in a country like India, where motherhood, in many cases, is forced upon women, especially after marriage, while unmarried women who are found to be pregnant are severely ostracised.

This observation had been made earlier as well by other apex court judges. For instance, in February 2017, SC judge A.K. Sikri said that it is the woman’s choice to either have a baby, or abort, or prevent pregnancy. It is her right.

A woman alone has the right over her body

The Supreme Court observed that a woman who seeks legal abortion cannot be required to seek consent from her family, Bar and Bench reported.

The top court noted that it is a common yet lamentable practice for registered medical practitioners (RMPs) to insist on compliance with extra-legal conditions, such as consent from the woman’s family, documentary proof, or judicial authorisation. If the woman fails to comply with these additional requirements, RMPs frequently decline to provide their services in conducting legal abortions.

“The decision to have or not to have an abortion is borne out of complicated life circumstances, which only the woman can choose on her own terms without external interference or influence. Reproductive autonomy requires that every pregnant woman has the intrinsic right to choose to undergo or not to undergo abortion without any consent or authorization from a third party,” the apex court said.

Also Read | Battleground Body: Sexism and the Right to Safe Abortions in India

Teenage pregnancies

The top court held that an RMP was exempt from disclosing the identity and other personal details of a minor in the information provided under Section 19 of the Protection of Children from Sexual Offences (POCSO) Act, LiveLaw reported.

Under Section 19 of the POCSO Act, 2012, it is mandatory for any person, including the child, to approach the police in case the said person has an apprehension that an offence under the Act is likely to be committed or such an act has already been committed. This information has to be provided to the local police.

The court also said that the POCSO Act is “gender neutral” and criminalises sexual activity by those below the age of 18. “Under the POCSO Act, factual consent in a relationship between minors is immaterial,” it said, but noted that this proscription does not prevent adolescents from engaging in consensual sexual activity.

“We cannot disregard the truth that such activity continues to take place and sometimes leads to consequences such as pregnancy. The legislature was no doubt alive to this fact when it included adolescents within the ambit of Rule 3B of the MTP Rules,” it said.

“The absence of sexual health education in the country means that most adolescents are unaware of how the reproductive system functions as well as how contraceptive devices and methods may be deployed to prevent pregnancies. The taboos surrounding pre-marital sex prevent young adults from attempting to access contraceptives. The same taboos mean that young girls who have discovered the fact that they are pregnant are hesitant to reveal this to their parents or guardians, who play a crucial role in accessing medical assistance and intervention”, the judgment added.

Separately, mandatory disclosure could deter minors from approaching qualified doctors.

“If there is an insistence on the disclosure of the name of the minor in the report under Section 19(1) of POCSO, minors may be less likely to seek out Registered Medical Practitioners (RMPs) for safe termination of their pregnancies under the MTP Act”, the court observed.

Therefore, it opined, “For the limited purposes of providing medical termination of pregnancy in terms of 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 of the minor in the information provided under Section 19(1) of the POCSO Act. The RMP who has provided information under Section 19(1) of the POCSO Act (in reference to a minor seeking medical termination of a pregnancy under the MTP Act) is also exempt from disclosing the minor’s identity in any criminal proceedings which may follow from the RMP’s report under Section 19(1) of the POCSO Act.”

Featured image: Unsplash

This article was first published on The Wire.