- Maansi Sinha, Symbiosis Law School, Hyderabad
ABSTRACT:
The case of X v. Principal Secretary, Health and Family Welfare Department is a landmark judgment that recognises the reproductive rights of unmarried women and emphasises gender equality. The decision widened the scope of the Medical Termination of Pregnancy Act, 1971 (as amended in 2021), by allowing unmarried women to have access to safe and secure medical abortion services. The court also addressed the discriminatory gaps in Rule 3B of the MTP Rules and placed reproductive rights under a larger framework of constitutional rights of privacy, dignity, and bodily autonomy under Article 21.
BACKGROUND:
Abortion is the discretion of a woman to terminate pregnancy by removing the embryo or fetus. In ancient India, abortion was vehemently condemned by the Hindu scriptures such as the Vedas, Upanishads, etc. These texts saw abortion as going against the natural order and interfering with nature. It was even comparable to killing one’s parents or a priest. However, there was an exemption if the mother’s health was at risk.
In modern times, the India Penal Code of 1860 criminalised abortion during British rule, except when necessary to save the mother’s life. Abortion was still illegal for a very long time until the Medical Termination of Pregnancy (MTP) Act was passed in 1971. This act allowed for safe and legal medical procedures to terminate pregnancies, primarily to protect the mother’s health and reduce the maternal mortality rate. The legislation legalised abortion only in specific cases, such as rape or incest, medical necessity, failure of contraception, and fetal abnormality.
Evidently, we have come a long way. In 2002 and 2021, amendments were made to make safe abortions accessible to more women and address the issue of sex-selective abortions. The time limit for abortion was also increased to 24 weeks.
X v. PRINCIPAL SECRETARY, HEALTH AND WELFARE DEPARTMENT & ANR:
However, the question remained if this right extended only to married women or the female victims of rape or incest. And if yes, what about single women? The case of X. v. Principal Secretary, Health and Welfare Department & Anr. (2022) addressed this issue. This landmark judgment was given by a 3-judge bench comprising Dr. DY Chandrachud, Justice AS Bopanna, and Justice JB Pardiwala, which discussed the right of an unmarried woman to exercise her reproductive rights.
Facts:
In this case, the appellant was a 25-year-old unmarried woman who got pregnant out of her relationship. At the time of filing the petition for abortion, the appellant was pregnant for 22 weeks. She wanted to abort her baby as her partner refused to marry her. The appellant filed a petition under Section 3(2)(b) of the MTP Act, 1971, and Rule 3B (c) of the MTP Rules, 2003. The Hon’ble High Court of Delhi refused to entertain the petition because the MTP Act does not extend to unmarried women. As there was a substantial question of law, the case was transferred to the Supreme Court.
Issue:
The main issue in this case was whether an unmarried woman can ask for termination of pregnancy u/s 3(2)(b) of MTP Act r/w Rule 3B of MTP Rules.
Judgment:
The Hon’ble Supreme Court observed that the MTP Amendment Act, 2021 is meant to be helpful to all women, including single and married women. The Act was never meant to make a distinction between married and single women and discriminate on that basis. A narrow interpretation of Rule 3B was discriminatory to single women under Article 14 of the Indian Constitution. Therefore, the 2021 amendment replace the words, “married woman or her husband” with the words “any woman or her partner.” Through this amendment, even single women were brought under the scope of the Act.
The Court also made observations in this case regarding marital rape. It was held that the meaning of the word “rape” will be read as including martial rape for this statute. Teenagers and young women were also brought within Rule 3B of MTP Rules. There is an interplay between the Protection of Children from Sexual Offences Act, 2012 (POCSO) and MTP Act, 1971 in case of minors.
JUDICIAL PRECEDENTS:
The Hon’ble Supreme Court referred to the judicial precedent of K.S. Puttaswamy v. Union of India, the court upheld the autonomy of women to choose whether to bear a child or terminate their pregnancy. A woman’s bodily autonomy falls under the scope of the Right to Privacy under Article 21. It was also held that the statutory right of a woman to terminate her pregnancy is associated with the constitutional right under Article 21 of the Constitution of India. This constitutional provision protects the rights of a woman if her mental and physical health is at stake. It is pertinent to note that the woman alone has the right over her body and is the ultimate decision maker when it comes to terminating her pregnancy.
The case of Suchita Srivastava v. Chandigarh Administration acknowledged the concept of “reproductive autonomy”. The term “reproductive autonomy” refers to the ability of individuals to make their own autonomous reproductive choices regarding pregnancy, childbearing, etc. It was held that these rights shall be exercised freely without any coercion.
CRITICAL ANALYSIS:
The critics may challenge the judicial interference in the legislature’s domain by including unmarried women under Rule 3B of the MTP Rules. However, the court is justified as it upheld the constitutional values under Article 21, to uphold reproductive autonomy and prevent discrimination. This is not the first time the judiciary has made such a decision and acted without legislative clarity. In the case of Vishaka v. State of Rajasthan, the Court issued guidelines to protect women from sexual harassment at the workplace. In another case, Navtej Johar v. Union of India, the Court decriminalized consensual same-sex relations under Section 377 of the Indian Penal Code. In the present case, the decision of the Supreme Court reflects a progressive use of judicial interpretation.
By broadening access to abortion up to 24 weeks for all women, including single women, the judgment places a greater responsibility on the Indian healthcare system as a whole to provide non-discriminatory and safe abortion services. Since many doctors and nurses in India still have a very conservative mindset, it is important to sensitize and train the medical professionals. The judgment also aims to reduce unsafe or illegal abortions.
While the Supreme Court’s decision is very progressive, one might question whether the court went far enough to address the systemic barriers in the case. Although the judgment has expanded the scope of Rule 3B of the MTP Rules, it has done so through judicial interpretation rather than directing and compelling the legislature to amend the law. In addition, the implementational aspect remains challenging. Access to abortion depends on the discretion of the doctors, the majority of whom have a very backward and narrow mindset and hesitate in providing safe and legal abortion services due to social stigma or personal biases, especially in rural areas. Moreover, the judgment does not address issues relating to mental health support, post-abortion care, and awareness mechanisms to enable women to make informed consent. Therefore, based on the following gaps, it can be strongly stated that legislative intervention is needed to make the provisions of the MTP Act, 1971, and MTP Rules clearer and address other issues that entail abortion.
CONCLUSION:
The decision in this case is pivotal to India’s reproductive rights jurisprudence. By extending abortion rights to single/unmarried women, the Hon’ble Supreme Court has upheld the constitutional principles of privacy, autonomy, and dignity. The decision rightly highlights the fact that reproductive rights are not tied to marital status but are a fundamental right associated with personal liberty.
However, the challenging aspect is the implementation of these statutory and constitutional rights. Even the most progressive rulings can fall short if no corresponding societal changes exist. The court has fulfilled its duty and has laid a constitutional foundation. But now it is incumbent upon the medical community, legislature, and the public to comply and ensure that every woman, irrespective of all walks of life, has access to safe, legal, and dignified reproductive healthcare. Legal reform must go hand in hand with cultural changes, ensuring that legal processes are theoretical and practical.
Most importantly, educational institutions and the media must play a crucial role in shaping the public narratives. Civil society organisations, NGOs, etc., can also initiate outreach programs and community-based awareness programmes for better implementation. Public health bodies can also help address ground-level challenges and monitor the implementation of the statutory and constitutional provisions.
This judgement should not only be considered as a milestone in the legal sphere in India, but it should also act as a catalyst for social transformation, eventually resulting in greater gender equality and reproductive justice.
FAQs:
- What did the Supreme Court decide in this case?
The Supreme Court held that single women are entitled to seek an abortion up to 24 weeks.
- What is the significance of this judgment?
The judgment recognizes that marital status should not be a barrier to accessing safe and legal abortion, especially for unmarried women.
- How did the Court interpret the MTP Act, 1971?
The Hon’ble Court adopted a purposive interpretation of the MTP Act and Rules, stating that the term “partner” in the statute should not be construed as only a wedded husband.
REFERENCES:
X v. Principal Secretary, Health and Welfare Department & Anr., 2022 SCC Online SC 1321.
Jha A., Rituraj A., X v. Principal Secretary, Health and Welfare Department & Anr., CMR University Journal for Contemporary Legal Affairs, Vol 5, 315-324.
Justice K.S. Puttaswamy & Anr. v. Union of India, [2017] 10 S.C.R. 569.
Suchita Srivastava v. Chandigarh Administration, [2009] 13 SCR 989.
Vishaka v. State of Rajasthan, [1997] Supp. (3) S.C.R. 404.
Navtej Johar v. Union of India, 2018 INSC 790.
INDIA CONSTI., Art. 21.
INDIA CONSTI, Art. 14.
Medical Termination of Pregnancy Rules, 2003.
Medical Termination of Pregnancy Act, § 3(2)(b), No. 34, Acts of Parliament (1971).
