The writing is on the wall as well as on Page 36 of the Supreme Court judgment in X vs. The Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi & Anr. It states that “all women are entitled to the benefit of safe and legal abortions,” with the word ‘ALL’ in bold.
Prof Zakiya Luna, who has been quoted in the judgment, has aptly stated:
“Reproductive justice reminds us that while the right to not have a child is important, the right to have a child and the right to parent with dignity must be protected just as strongly.”
The bench, while quoting her on reproduction being both biological and political, has addressed a lot of concerns raised over the years because of the change in societal institutions. The wrath has been borne primarily by women and addressing that burden in detail has made this judgment a landmark one, to begin with.
What Has Changed in the Law
The Delhi High Court, through its July 2022 order, had rejected the plea of an unmarried woman who wanted to terminate a single intrauterine pregnancy by her choice, on the ground that Section 3 (2) (b) of the Medical Termination of Pregnancy Act, 1971 (MTP Act, 1971, excludes her, and allowing her to do so would be going beyond the statute.
As per the order, this was only applicable to those women who are covered under the Medical Termination of Pregnancy Rules, 2003. Rule 3B, in particular, is what excluded the petitioner in the case.
On 29 September, an SC bench comprising Justices DY Chandrachud, JB Pardiwala, and AS Bopanna delivered the verdict on the interpretation of the MTP Act, accepting that unmarried women are to be treated on equal footing as that of married women.
The term “woman” itself has been interpreted to include persons other than cisgender women, who also require safe access to medical termination.
The 75-page judgment goes beyond just marital status and the notion that marriage is a precondition to the grant of rights to individuals (alone or in relation to one another).
The MTP Act,1971, and the rules’ interpretation till now was done with only physical and mental health as deciding factors for the woman to carry pregnancy to full term and take care of the child afterwards.
Now, the order also acknowledges the personal circumstances that rule the decision of that person, like that of the unmarried appellant who did not want to carry the social stigma of being a single mother, and did not have resources to raise a child by herself. It goes beyond the certification of the board and lays the onus on the choice that a woman can make by gauging her own actual or reasonably foreseeable environment.
Addressing Unsafe Procedures
The bench, in a comprehensive analysis, has even addressed the discriminatory behaviour of Registered Medical Practitioners (RMP) because of their notion about pre-marital sex and the resultant stigma a woman faces. Many resort to unsafe procedures to abort rather than seek out legitimate medical help.
The interpretation has been done with emphasis on the changing times and how the statutes are considered to be ‘always speaking’ and in consonance with the transformative nature of justice, as enunciated by the apex court in Navtej Johar.
Criminal law cannot be used to interfere with personal liberty on the grounds of social constructs around what is ethical and permissible by notions of morality. Justice Chelameshwar, in the Puttaswamy judgment, had already affirmed that “a woman’s freedom of choice whether to bear a child or abort her pregnancy are areas which fall in the realm of privacy.”
The judgment talks about dignity, bodily integrity, and how by prohibiting unmarried or single pregnant women (whose pregnancies are between 20-24 weeks) from accessing abortion, while allowing married women to access them during the same period, would fall foul of the spirit guiding Article 14.
Change in Family Structures
The change in family structures to include live-in relationships has already been acknowledged by SC in S Khusboo v. Kanniammal, which called for societal acceptance of pre-marital sex, especially in the context of live-in relationships.
The laws in keeping up with changing scenarios have emphasised that unmarried women have the same rights as married women in terms of adoption, succession, and maternity benefits.
The 2021 amendment brought forth to the MTP Act made it more inclusive by adding “any woman or her partner,” thereby bringing any relationship outside the institution of marriage within the protective ambit.
Paras 71 and 73 of the judgment state that “a woman may become pregnant as a result of non-consensual sexual intercourse performed upon her by her husband” and “it is not inconceivable that married women become pregnant as a result of their husbands having ‘raped’ them. The nature of sexual violence and the contours of consent do not undergo a transformation when one decides to marry.” They come with an acknowledgment many have been waiting for.
This stirs the cauldron in an interesting manner since the challenge to the marital rape split verdict by the Delhi HC is up for hearing in February 2023.
By acknowledging Intimate Partner Violence (IPV) as a reality that can take the form of rape, which will also include marital rape, solely for the purposes of the MTP Act and any rules and regulations framed thereunder, the Lordships have opened the floodgates for defining that as a crime in a manner many victims of the IPV would have hoped for.
Nivedita Menon, in her book Seeing Like a Feminist, has stated:
“An ideal feminist world would not be one in which abortions were free and common, but one in which women would have greater control over pregnancy, and in which the circumstances that make pregnancies unwanted, would have been transformed. Until then, in a hugely imperfect, unfair and sexist world, I believe feminists must defend women's access to legal and safe abortions, whenever they decide to have them, and whatever the reason for their decision."
The judgment by the apex court has granted that right today as a matter of choice to those who need it with an inclusive definition on paper.
At a time when Cuba just ratified a new family code that recognises and legalises equal marriage and equal adoption rights regardless of sexual orientation, the rights of surrogate mothers, and even acknowledges the work done by women in the household, the recent judgment by the SC, addressing definitions and notions surrounding consent, choice, and access to safe abortions, is historic for many reasons.
(The writer is an advocate and law researcher based out of Delhi NCR. The views expressed are the author’s own.This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)