“All women are entitled to the benefit of safe and legal abortions”

In a landmark judgment Hon’ble Supreme Court made important observations regarding “abortions” whether woman and married or not. The Apex court made it clear that all women are entitled to the benefits of safe and legal abortions. Supreme Court also made it clear that marital rape comes within the meaning of rape for the purpose of Medical Termination of Pregnancy Act, 1971 (amended in 2021).

Background

In an appeal against the order of Delhi High Court the appellant invoked the writ jurisdiction of the High Court seeking its permission to terminate her pregnancy before the completion of twenty-four weeks on 15 July 2022. Other ancillary reliefs were sought.

The relief claimed before Delhi High Court:

• “A. Permit the Petitioner to terminate her ongoing pregnancy through registered medical practitioners at any approved private or government center or Hospital before 15.07.2022 as her relief will be infructuous after that as the pregnancy will be of around 24 Weeks by that time;
• B. Restrain the Respondent from taking any coercive action or criminal proceedings against the Petitioner or any Registered Medical Practitioner terminating the pregnancy of the petitioner at any approved private center or hospital registered by Govt NCT of Delhi;
• C. Direct the Respondent to include unmarried woman also within the ambit of the Rule 3B of the Medical Termination of Pregnancy Rules 2003 (as amended on 21.10.2021) for termination of pregnancy under clause (b) of sub-section (2) Section 3 of the MTP Act, for a period of up to twenty-four weeks;
• D. Order an immediate Interim Relief of Stay during the course of proceedings”

The appellant sought permission to terminate her pregnancy in terms of Section 3(2)(b) of the Medical Termination of Pregnancy Act 19712 and Rule 3B(c) of the Medical Termination of Pregnancy Rules 20033 (as amended on 12 October 2021).

The High Court held that:

The Petitioner, who is an unmarried woman and whose pregnancy arises out of a consensual relationship, is clearly not covered by any of the Clauses under the Medical Termination of Pregnancy Rules, 2003. Therefore, Section 3(2)(b) of the Act is not applicable to the facts of this case.
The order of the High Court gave rise to the present appeal.

The apex court observed that, “In determining whether the continuation of the pregnancy would involve grave danger to the pregnant woman’s physical or mental health, her actual or reasonably foreseeable environment may be taken into account. We are of the opinion 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.”

pointing out the stigma attached with single women, the court observed that, “The social stigma surrounding single women who are pregnant is even greater and they often lack support from their family or partner. This leads to the proliferation of persons not qualified / certified to practice medicine. Such persons offer the possibility of a discreet abortion and many women may feel compelled by their circumstances to engage the services of such persons instead of opting for a medically safe abortion.”

Taking progressive stand and liberal approach in consonance with the modern realities the court rightly observed that interpretation of law must took the social realities into account.

In the evolution of the law towards a gender equal society, the interpretation of the MTP Act and MTP Rules must consider the social realities of today and not be restricted by societal norms of an age which has passed into the archives of history. As society changes and evolves, so must our mores and conventions. A changed social context demands a readjustment of our laws. Law must not remain static and its interpretation should keep in mind the changing social context and advance the cause of social justice.

Women and Freedom

The apex Court observed 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. Reproductive rights include the right to access education and information about contraception and sexual health, the right to decide whether and what type of contraceptives to use, the right to choose whether and when to have children, the right to choose the number of children, the right to access safe and legal abortions, and the right to reproductive healthcare. Women must also have the autonomy to make decisions concerning these rights, free from coercion or violence.”

The Judgment cited the case of K S Puttaswamy v. Union of India in which it was held that “right to privacy as a constitutionally protected right under Article 21 of the Constitution.”

The apex court disagreed with the decision of Delhi High Court and made it clear that, “The right to decisional autonomy also means that women may choose the course of their lives”. It further observed that, “…a woman can become pregnant by choice irrespective of her marital status.”

Finally the apex court made it absolutely clear that:

[t]he right to dignity entails recognising the competence and authority of every woman to take reproductive decisions, including the decision to terminate the pregnancy. Although human dignity inheres in every individual, it is susceptible to violation by external conditions and treatment imposed by the state. The right of every woman to make reproductive choices without undue interference from the state is central to the idea of human dignity. Deprivation of access to reproductive healthcare or emotional and physical well-being also injures the dignity of women.

The Judgement clarified that, “…nothing in this judgment must be construed as diluting the provisions of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act 1994”

case:

X (Appellant) vs. The Principal Secretary,
Health and Family Welfare Department,
Govt. of NCT of Delhi & Anr. (Respondents)

Civil Appeal No 5802 of 2022
(Arising out of SLP (C) No 12612 of 2022)

• Dr. Amit Mishra, learned counsel appeared on behalf of the appellant.

• Ms. Aishwarya Bhati, learned senior counsel and Additional Solicitor General assisted the Court in the interpretation of Section 3(2) of the MTP Act and Rule 3B(c) of the MTP Rules.