Abortion and autonomy: The journey to a landmark judgment

Updated on Sep 30, 2022 11:40 AM IST

The landmark verdict, authored by justice Dhananjaya Y Chandrachud, embarked on an expansive jurisprudential journey to fortify a spectrum of women’s rights, and forged some new ones to enable the fulfilment of existing rights.

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By, New Delhi

The legal regime around the abortion law in India witnessed a watershed moment on Thursday with the Supreme Court stamping out the “artificial distinction” between married and single women, and granting a judicial recognition to “marital rape” for the purposes of abortion so as to marshal a woman’s right to reproductive and decisional autonomy.

The landmark verdict, authored by justice Dhananjaya Y Chandrachud, embarked on an expansive jurisprudential journey to fortify a spectrum of women’s rights, and forged some new ones to enable the fulfilment of existing rights.

The path to the final judgment saw the highest court of the country untangle a spate of legal gaps and conundrums by applying the principles of purposive interpretation and legislative intent, which eventually led to breaking new ground and evolving a modern jurisprudence on the abortion law in the country to keep pace with the changing social mores and non-traditional familial relationships.

The three-judge bench verdict is also a shining example of how a specific law should draw from similar welfare legislation to strengthen the rights and create a mechanism for realisation of those rights.

A close look at the 75-page judgment would testify to extensive legal scrutiny coupled with an inclusive and liberal outlook that resulted in a historical verdict.

Why the judgment:

A 25-year-old single woman, hailing from Manipur, approached the Delhi high court seeking termination of her 22-week pregnancy out of a consensual relationship. On July 15, the high court denied her permission, referring to a provision in the Medical Termination of Pregnancy (MTP) Act which allowed only married women to undergo abortion after 20 weeks. It added that she was clearly not covered by any of the clauses under the MTP Rules which allowed married women to abort on account of mental anguish, rape and health complications, among others. The high court suggested her to give birth to the child, and give it up for adoption.

The woman approached the Supreme Court, pleading that she did not want to carry the pregnancy to term since she was wary of the “social stigma and harassment” pertaining to unmarried single parents, especially women. Her plea added that the continuation of the unwanted pregnancy would involve a risk of grave and immense injury to her mental health.

On July 21, the top court allowed the woman to go ahead with the abortion, provided a medical board certifies that there is no threat to her life from the procedure. On that day, the bench also decided to examine the scope of the MTP Act and the rules under the law that differentiates between married and unmarried women. Later, the termination of the woman’s pregnancy was safely carried out.

The legal regime:

Before the enactment of the MTP Act in 1971, the medical termination of pregnancy was governed by the Indian Penal Code, with Sections 312 to 318 forming a part of this segment. Most of these provisions aimed at criminalising abortions, except where the procedure was done in good faith in order to save the woman’s life.

In 1971, the MTP Act was enacted by Parliament as a “health”, “humanitarian”, and “eugenic” measure, to decriminalise abortion in certain defined circumstances and under due supervision of registered medical practitioners.

Under the 1971 law, a pregnancy could only be terminated under Section 3(2) if it did not exceed 20 weeks. It laid down that the pregnancy can be terminated on the opinion of one doctor if it is done within 12 weeks of conception, and two doctors if it is done between 12 and 20 weeks. Abortion was permitted only when the continuance of the pregnancy would involve a risk to the life of the pregnant woman, the discovery of foetal abnormalities, immediate necessity to save the woman’s life, and cause grave injury to the woman mental or physical health (including rape and failure of birth control measures).

The 2021 amendment:

The 1971 law failed to meet the needs of the changing times and advancements in medical science as several women, including rape survivors, mentally incapacitated women, and women undergoing unwanted pregnancies due to contraceptive failures, started approaching courts to seek approval for terminating their pregnancy beyond the prescribed gestational period of 20 weeks.

The Act was finally amended in 2021. The Statement of Objects and Reasons of the Bill stated that women’s access to legal and safe abortion should be ensured to reduce maternal mortality and morbidity caused by unsafe abortions.

The amendments permitted abortion with the assent of one medical practitioner within 12 weeks, and with the opinion of two medical practitioners within 20 weeks. Abortion was allowed up to 24 weeks for certain classes of women, defined under the MTP Rules. Rule 3B permitted abortion up to 24 weeks for women due to change of marital status during the ongoing pregnancy (widowhood and divorce), besides in cases of survivors of rape, victims of incest, and other vulnerable women (like differently abled women and minors).

Significantly, the 2021 amendment replaced the word “by any married woman or her husband” with the words “any woman or her partner”, bringing within the fold of the law pregnancies outside marriage institutions. The Amendment Act also included unwanted pregnancies due to the failure of contraceptives as ground for abortion up to 20 weeks.

The issues before the court and adjudication:

The court was called upon to examine if Rule 3B of the MTP Rules, 2003 is violative of Article 14 of the Constitution (right to equality) since it excludes an unmarried woman, and deprives her the access to safe and legal abortion.

“The answer may be discerned by imparting a purposive interpretation to Rule 3B,” noted the bench, which also included justices AS Bopanna and JB Pardiwala, as it borrowed from jurisprudential concepts and legal precedents to examine the question.

It maintained that legislative intent of a welfare legislation could be the key to understanding the effect of a law and that a progressive and beneficial legislation must be interpreted in favour of the beneficiaries when it is possible to take two views of a legal provision. “It is the court’s duty to discern the intention of the legislature in making the law. Once such an intention is ascertained, the statute should receive a purposeful or functional interpretation,” noted the bench, citing a 2020 judgment in KH Nazar Vs Mathew K Jacob.

It further cited Badshah Vs Urmila Badshah Godse (2014) to hold that a law should be interpreted in terms of the changing needs of the times and circumstances. “While much of law’s benefits were (and indeed are) rooted in the institution of marriage, the law in modern times is shedding the notion that marriage is a precondition to the rights of individuals (alone or in relation to one another). Changing social mores must be borne in mind when interpreting the provisions of an enactment to further its object and purpose. Statutes are considered to be always speaking,” underlined the court.

Next, the court brought up similar welfare laws such as the Maternity Benefit Act (1961), the Hindu Succession Act (1956) and the Hindu Adoptions and Maintenance Act (1956) to drive home the point that “these legislations also signify that both married and unmarried women have equal decisional autonomy to make significant choices regarding their own welfare”.

In the evolution of the law towards a gender equal society, the court said, 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.

Lauding the 2021 amendment, the judgment highlighted that by introduction of the word “partner” in the Act, the legislature intended to clarify the scope of Section 3 and bring pregnancies which occur outside the institution of marriage within the protective umbrella of the law.

“The unamended MTP Act of 1971 was largely concerned with ‘married women’... Significantly, the 2021 Statement of Objects and Reasons does not make a distinction between married and unmarried women. Rather, all women are entitled to the benefit of safe and legal abortions,” the court pointed out.

It finally held that Rule 3B must be construed liberally to save it from being struck down on the ground of being discriminatory against unmarried women, who may go through the same trauma and life-situations as a married woman does.

“The object of Section 3(2)(b) of the MTP Act read with Rule 3B is to provide for abortions between 20 and 24 weeks, rendered unwanted due to a change in the material circumstances of women. In view of the object, there is no rationale for excluding unmarried or single women (who face a change in their material circumstances) from the ambit of Rule 3B. 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,” it ruled, while giving a purposive interpretation to the legal provisions.

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 of a married woman, declared the court.

The ruling constructs a marker in the judicial history of the country, and signifies a judiciary that is ready to adapt and evolve to keep step with changing social norms and unfolding of new sets of rights to ascertain dignity, privacy and bodily autonomy for women.

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