On International Safe Abortion Day, the Supreme Court of India delivered a historical judgment with regard to the assertion and acknowledgement of the basic reproductive rights of women, paving the way for a better tomorrow with regard to gender equality.
A three-Judge Bench of Justices DY Chandrachud, AS Bopanna, and JB Pardiwala penned a 75-page judgment, iterating that the benefits of the Medical Termination of Pregnancy Act, 1971 (MTP Act), would be extended to unmarried/single women, and any distinction between these women and married women would not be sustainable.
Signalling a shift in focus from the doctors to the patients, the judgment answers myriad questions pertaining to the reproductive rights of women, an area of law that remains controversial because of the manner in which it is mired with oppressive socio-political structures and the overwhelming need for the State to control the autonomy of a woman.
In answering these questions, the ideas put forth by the judgment bring to the floor the opportunity of igniting discussions that many shy away from and/or remain obtuse about.
In a first, it also acknowledges the need of persons other than cis-gender women to access safe medical termination of their pregnancies. It further provides an exhaustive interpretation of mental health, dwells upon the structure of a family as an atypical unit, and cements the proposition of decisional autonomy of a woman.
Focus Was on Protecting Doctors
Just a bare reading of the MTP Act demonstrates that it is an exception to the Indian Penal Code, 1860, which penalises the act of seeking and facilitating an abortion. Being a special law, the MTP Act is meant to create a departure from the norm by protecting registered medical practitioners (RMP) who, in good faith, have facilitated an abortion as per the law.
The focus of the law is on ensuring that any RMP who has aided a woman in getting an abortion will be exempted from any penal consequences. The issue with this focus is that access to abortion remains contingent upon the approval of the RMP. Despite laws that allow for an abortion, it is the subjective opinion of the RMP, who is supposed to perform the abortion, which controls a women's right to access safe healthcare.
More often than not, in a patriarchal and conservative country like India, this opinion of the RMP translates into virtually a barrier that disallows the women in question from accessing her fundamental right to safe healthcare, and this barrier either propels the women towards unsafe abortions or towards carrying forward with the pregnancy that may gravely affect her mental health.
In this context, by emphasising that the very object and purpose of the MTP Act is to safeguard every woman's right to safe and legal abortions, the Supreme Court has brought the focus back on the right to safe abortions that is inherent in all women and has categorically stated that "significant reliance" must be placed on each women's estimation as to whether she is in a position to carry to term her pregnancy.
Sole Prerogative of Women to Decide
Exercising sexual autonomy outside the confines of a heterosexual matrimonial arrangement is looked down upon by many RMPs who harbour prejudices and believe stereotypes about women who indulge in this.
This leads to many RMPs creating barriers such as seeking the consent of the family of the women, documents, etc.
The Supreme Court has observed that all of these requirements are extra-legal in nature and have no basis in law. If the requirements stipulated in the MTP Act are satisfied, the RMP is obligated to perform the abortion. It is only the women's consent that is material.
It was also observed that as a result of the lack of awareness of our own bodies or the laws that govern our bodies, women are often misguided by RMPs who refuse to perform an abortion or shame women for wanting to get one.
In line with the aforementioned thought, the Supreme Court reaffirmed its 2009 decision in Suchita Srivastava v. Chandigarh Administration, where the right to reproductive autonomy was placed under the Article 21 framework and acknowledged the social stigma that women face when engaging in pre-marital sex and the lack of access to sexual health education.
In this regard, the judgment has reminded the State of its positive constitutional obligation to ensure that information regarding reproduction and safe sexual practices is disseminated widely in order for it to reach all parts of the population.
By accentuating these basic rights which inhere in our Constitution but do not see the light of day in practice due to draconian social norms and personal prejudices, and by placing women in the centre of the legal framework, the Supreme Court has set the course for feminist jurisprudence that is concentrating upon widening the scope of pre-existing rights accorded to women rather than establishing them in the first instance.
Marital Rape is Rape for the Purpose of Seeking Abortion
In a seminal move that may just lead to the dismantling of Exception 2 to Section 375 IPC that provides legal impetus to marital rape, the Supreme Court observed that pregnancies arising out of sexual assault by a husband on his wife would fall within the ambit of Rule 3B(a) of the MTP Rules, 2021.
In doing so, the Supreme Court has stated, "the nature of sexual violence and the contours of consent do not undergo a transformation when one decides to marry."
This invariably cements the wife's prerogative to seek an abortion and not undergo a pregnancy that will lead to her raising a child with her abuser. The judgment further notes that the woman would not necessarily need to seek recourse to formal legal proceedings to prove the factum of sexual assault, rape, or incest.
This places the power to seek an abortion in the hands of the woman and signals to society that neither the husband nor the RMP has any role to play in the decision that is taken by the woman in question.
The mental health of the woman, which must take into account her immediate or foreseeable environment as well as a change in or possible circumstances, is of paramount importance in deciphering her choice to not carry the child.
RMP Need Not Disclose Identity of Minor
In cases involving minors seeking abortions, many a time, RMPs refuse to perform the same by stating that they are obligated under Section 19 of the Protection of Children from Sexual Offences Act, 2012, to report any information relating to a child being subjected to sexual offences.
This deters minors who engage in consensual sexual relationships or minors who are victims of sexual violence at the hands of family members from undergoing abortion or resorting to quacks who perform abortions without any licence.
The MTP judgment has done away with any confusion relating to this area by harmonising both the Acts and stating that for the limited purposes of providing medical termination of pregnancy in terms of the MTP Act, on request of the minor and their guardian, the RMP need not disclose the identity or any other personal details in the information that is to be reported under Section 19 of the POCSO Act.
By remarking that the objective of the MTP Act could not possibly be to deprive minors from seeking abortions, the Supreme Court has eased access to the same and has curtailed RMPs from creating unnecessary hurdles that could impinge upon a minor's right to safe healthcare.
My Body, My Choice
The over-medicalisation of abortion laws in the country, despite being seemingly progressive and liberal, have effectively rendered the MTP Act and the rules thereunder pointless.
The Supreme Court's decision brings the focus back on women who wish to seek abortion by reiterating their right to reproductive autonomy, which includes access to healthcare and their right to dignity.
By issuing staunch directions that solely the women's consent is pertinent and that the RMP is obligated to perform the abortion in consonance with the MTP Act, the Supreme Court has ushered in a change in the perception that abortion laws in India are meant to protect the service providers and not the service seekers.
The various propositions laid down by the Supreme Court are a cause of cheer amongst women, especially in a paternalistic society which heavily relies upon regulating women's bodies in a bid to maintain the status quo. One can only hope that these propositions translate themselves into actual change on the ground rather than being flowery words that remain on paper.
(Radhika Roy is a lawyer based out of New Delhi and former Associate Editor at LiveLaw)