Indian law students are reporting for JURIST on law-related developments in and affecting India. This dispatch is from Rishabh Yadev, a postgraduate law student at the University of Delhi.  

Yesterday, September 29, a 3-judge bench of the Supreme Court of India headed by Hon’ble Justice D.Y. Chandrachud delivered a historic and progressive judgment on the issue of abortion rights, holding that unmarried women are also entitled to seek an abortion of pregnancy arising out of a consensual relationship within 20-24 weeks of conception (X v. The Principal Secretary, Health & Family Welfare Dept, Govt. of NCT of Delhi).

Allow me to give you the context of the case. The appellant in the matter was pregnant. When her partner refused to marry her, to avoid the social stigma and harassment which is meted out to single mothers in a predominantly conservative society such as India, and due to the absence of a source of livelihood, she wanted to undergo an abortion. She had first approached the High Court at Delhi, which refused to allow the abortion on the ground that the case of an unmarried woman whose pregnancy arises out of consensual sex is outside the ambit of the Medical Termination of Pregnancy (MTP) Rules, 2003.

The Supreme Court judgment, which runs to 75 pages, begins on an inclusive note by mentioning that the term “woman” in this judgment is to be understood as including persons other than cis-gender women who may require access to safe medical termination of their pregnancies. Under section 3 of the Medical Termination of Pregnancy Act, 1971 (MTP Act), abortions are allowed between 20-24 weeks for certain categories of women enumerated in the MTP Rules, such as survivors of sexual assault, rape or incest, minors, women with physical and mental disabilities and women who undergo widowhood or divorce during an ongoing pregnancy.

Applying the rule of purposive interpretation, keeping in mind that the MTP Act is primarily beneficial legislation, meant to enable women to access services of medical termination of pregnancies provided by a registered medical practitioner, the Court held that the MTP Amendment Act, 2021 intended to extend the benefits of the statute to all women, including single and unmarried women. The court rightly pointed out that if the benefits were limited to married women, it would wrongly perpetuate the notion that only married women indulge in sexual intercourse. The artificial distinction between married and single women is not constitutionally sustainable.

The holistic interpretation of the MTP Act included embedding within its meaning constitutional values such as the right to reproductive autonomy, the right to live a dignified life, the right to equality, and the right to privacy. Bodily autonomy is the right to make decisions about one’s body. The decision to carry a pregnancy to its full term or terminate it has to be that of the mother. Right to dignity means that every human has dignity merely by being a human, and can make self-defining and self-determining choices.

India’s obligations under international law were also relied upon, such as Article 6 of the International Covenant on Civil and Political Rights (ICCPR) which recognizes and protects the inherent right to life of all human beings. The Convention on the Elimination of All Forms Discrimination against Women (CEDAW), Article 12 of which requires the State Parties to take appropriate measures to eliminate discrimination against women in the field of health care services in connection with family planning, pregnancy, confinement, and post-natal period was also relied upon.

This decision comes just four months after the Supreme Court of United States ruling in Dobbs v. Jackson, which overturned Roe v. Wade, eliminating the constitutional right to abortion and leaving each US state to do as it will. The decision of the Supreme Court of India, especially because a substantial part of it relies on international obligations as well, can help in furthering global jurisprudence on women’s reproductive rights. Within India, it can also help ‘women’ (as interpreted in the judgment to include other genders) get safer access to abortions, without stigma, shame, and financial and medical risk.

This is not to say that all is rosy. Societal change is much harder to bring than legal change, and in India, judge-made law often remains a wallflower, pretty to look at, but deprived of life. A clarifying amendment by the Parliament, supplemented by awareness and sensitization campaigns by the executive, would go a long way in cementing this progressive judgement. Tonight, we can rest, but tomorrow we must begin again.