SC Widens Scope Of Abortion Rights: What It Means To Us

On 28th September 2022 –serendipitously, International Safe Abortion Day -  the Supreme Court significantly widened the scope of abortion laws in India. Justices D.Y Chandrachud, A.S. Bopanna, and J.B. Pardiwala declared that all women are entitled to safe and legal abortions up to 24 weeks of pregnancy. In this forward thinking judgment, the Bench held that as the foetus is dependent on the woman’s body to sustain itself, the decision to terminate a pregnancy is rooted in the woman’s right of bodily autonomy.

The three Judge Bench delivered its judgment on appeal of a case wherein a 25 year old woman sought to terminate her pregnancy after 24 weeks. She had been in a consensual relationship with a man, and on failure of the same, sought to terminate her pregnancy.

SC Widens Scope Of Abortion Rights

In this judgment, the Court has read down the provisions of the MTP Act, (Medical Termination of Pregnancy) which govern legal abortions in India. Section 3(2)(b) of the MTP Act says that a pregnancy may be terminated by a registered medical practitioner if the pregnancy does not exceed 24 weeks in cases of certain categories of women if two RMPs are of the opinion that –

3.(2)(b)(i). the continuation of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or

(ii) there is substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality.

In the explanation provided to section 3, the Act makes clear that pregnancy resulting out of failure of any device used by any woman or her partner for the purpose of limiting the number of children or preventing pregnancy may be presumed to cause anguish constituting a grave injury to the mental health of the pregnant woman.

Rule 3B of the MTP Rules, 2021 say that women shall be eligible for termination of pregnancy for a period of up to 24 weeks if they are survivors of sexual assault, or rape, or incest, if they are minors, if they undergo a change of marital status during the ongoing pregnancy (such as widowhood and divorce), women with major physical disabilities, and mentally ill women.

The MTP Act was enacted at a time where sexual intercourse and pregnancy were viewed as exclusive to married women in the eyes of society. However, as Justice Chandrachud noted in his obiter, assuming only married women are sexually active is untrue. Therefore, they cannot be prohibited from exercising their bodily autonomy on such grounds.

In its reading down of the Act, the Bench has noted that Rule 3B does not limit itself to married women alone, as it allows for change of marital status as grounds for termination of pregnancy. The Court held that “widowed or divorced” should not be read as exhaustive examples, and that a distinction between married and unmarried women is arbitrary. Denying a woman the right to terminate her pregnancy on the grounds of her marital status would amount to violation of her fundamental rights under Article 14 and Article 21 of the Constitution.

It is also important to note that in its reading down of the Act, the Court has held that “rape” as grounds for abortion under the purview of the MTP Act must be read so as to include “marital rape” as grounds for termination of pregnancy. This is a huge win in the fight for justice for victims of domestic violence (DV). On ground, we know that several victims of DV in India feel further trapped by their circumstances by pregnancies resulting out of forced sexual intercourse from their spouses. Recognition of marital rape in this context indicates a forward thinking and empathetic outlook of the court towards such victims.

As interesting as the judgment itself, is the obiter dictum – that is the Judge’s opinion, which is expressed, but inoperable. In this case, there are several noteworthy points expressed in the obiter. Firstly, the Bench noted that reading down of the MTP Act so as to only include cis-gendered women would defeat the intention of the Act. It observed that the term “woman” under the Act must be read so as to include all persons capable of becoming pregnant. This recognition of pregnancy outside of the strict gender binary, if indicative of the direction the Court is to take on gender equality and inclusivity, is encouraging.

However, there are certain more controversial points raised in the obiter. Regarding pregnancies in minors between the ages of 16 to 18, the Court has observed that Registered Medical Practitioners (RMPs) may not be required to file FIRs or report the same. However, this goes against section 19 of POCSO, (Protection of Children from Sexual Offences) which mandates reporting of cases of suspected or anticipated sexual abuse against minors under the age of 18. The intention behind this observation is that in many cases, minors of that age engage in consensual sexual relations, which may result in pregnancy. The mandatory reporting often acts as a deterrent from seeking safe and legal abortions. Instead, these minors resort to unsafe and unregulated measures to terminate their pregnancies. Furthermore, it protects the other party  - who is often also a minor - from being prosecuted for consensual acts.

While the reasoning is rational, it raises concern for those on ground, as children of this age are often unable to identify what is truly a consensual relationship. This may lead them to be more susceptible to pressures from the other party in the relationship, or from their family members, which will result in under-reporting of cases of child sexual violence (CSV). The onus on RPMs acts as a further check and balance to ensure that CSV does not go unidentified. Therefore, if the objective is to protect older adolescents, there must be a multi-pronged approach, including increased sexual education, sensitization of parents, teachers, and other adults, as well as sensitization of RPMs and Police on correctly identifying children facing or at risk of facing abuse.

Red Dot Foundation, as a part of SAGE’s Brave Movement, has been interacting with various organizations and educational institutions across the country to discuss Child Sexual Violence and ways to tackle it. It has become abundantly clear that rigourous curriculum for sexual education must be developed and taught to minors as well as the adults responsible for them. Implementing good practices at both an individual and policy level will aid in preventing CSV, as well as identifying victims early. This will also lend itself to helping these minor victims in terminating unwanted pregnancies earlier, and with less mental and physical distress.

While the intent behind this judgment may take a while to trickle down into all levels of society, it is still a heartening step in the right direction.

The views expressed are the author's own.