This article is written by Manmeet Singh
In a landmark decision, India’s Supreme Court extended the right to a safe and legal abortion to unmarried women and single women. Following this decision, all women in the country, regardless of marital status, will be able to have an abortion for up to 24 weeks. A three-judge bench led by Justice DY Chandrachud issued the decision.
Justice Chandrachud stated that the beneficiaries of a statute should not be decided by the lawbased on narrow patriarchal principles about what constitutes permissible sex. This would result in unfair classifications.
According to the law in India, the Medical Termination of Pregnancy Act allows the termination of pregnancy by a medical practitioner in two stages. After a crucial amendment in 2021, for pregnancies up to 20 weeks, termination is allowed under the opinion of one registered medical practitioner. The rules attached to the law prescribe certain criteria in terms of who can avail of termination for pregnancies between 20 and 24 weeks. It also requires the opinion of two registered medical practitioners in this case.
For pregnancies under 20 weeks, termination may be permitted if: a) the continuation of the pregnancy would endanger the pregnant woman’s life or cause grave harm to her physical or mental health; or b) there is a substantial risk that the child would suffer from any serious physical or mental abnormality if born.
The explanation of the provision states that termination within 20 weeks is allowed “where any
pregnancy occurs as a result of the failure of any device or method used by any woman or her partner to limit the number of children or prevent pregnancy, the anguish caused by such pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman”.
The Supreme Court interpreted Rule 3B of the Medical Termination of Pregnancy Rules (2003), which lists seven categories of women: “(a) survivors of sexual assault, rape, or incest; (b) minors; (c) change of marital status during the pregnancy (widowhood and divorce); (d) women with physical disabilities (major disability as defined by the Rights of Persons with Disabilities Act, 2016); (e) mentally ill women, incest;
The above provision was challenged by a 25-year-old girl whose plea to seek an abortion was declined by the Delhi High Court.
The Supreme Court stated in its decision that Rule 3B(c) cannot be read in isolation but must be read in conjunction with other sub-clauses under 3B.Only 3B(c) can exclude unmarried women when the other sub clauses do not distinguish between married and unmarried women.
Through this decision, the Apex court has strengthened article 14 of the Indian constitution, which provides for equality before the law. The court declared that prohibiting single or unmarried women who are pregnant between 20–24 weeks from accessing abortion while allowing married women to do the same was a violation of the fundamental right under Article 14. Apart from this, the judgement has also widened the meaning of Article 21 of the Indian Constitution, which declares that no person shall be deprived of his life for personal liberty except according to procedure established by law.
Earlier in 2017, the 9-judge bench of the supreme court in Justice KS Puttaswamy (retd) versus Union of India unanimously held that the right to privacy is an intrinsic part of article 21. The court further observed that a woman’s freedom of choice whether to bear a child or abort her pregnancy also comes under the right to privacy. The current judgement of the apex court has expanded the purview of the term “reproductive rights” as well.
On one hand, in India, the Supreme Court through its various judgements has not only expanded the purview of article 21 and empowered women and other citizens, granting them a higher degree of autonomy, but it is also extremely tragic to see that the world’s oldest democracy has curtailed the same.
Earlier this year, in June, the Supreme Court of the USA opened the doors for the states to ban or severely restrict the ability of pregnant women to get abortions. The court overturned its ruling of 1973, Roe versus Wade, which entitled women to an abortion during the first three months. Thirteen states have passed “trigger laws” that come into effect upon Roe v. Wade being overturned.
Others have left old laws on the books that banned abortion before 1973—they could now go back into force.
Over the past decade, several states have also tried to pass laws making abortion illegal, except in a few circumstances, such as if the pregnant woman’s life is at risk. Some of those laws were struck down by lower courts, as they appeared to violate Roe v. Wade. But now they will likely come back into force. According to Guttmacher, more than 20 states are making moves to limit access to abortion. Some states intend to ban abortion from the moment of conception, while others are introducing bans at six or more weeks.
Most have said they will not prosecute women for trying to end their pregnancy, reserving criminal penalties for abortion providers.
One must note here that the United States was one of the earliest nations in the world to grant fundamental rights to its citizens by amending its extremely rigid constitution through the Bill of Rights, and India has borrowed the concept of fundamental rights from the constitution of the former.
