SC judgement on Abortion as a fundamental right

Key words: Reproductive rights, Abortion care, Marital Status, Decisional Autonomy, Decriminalizing abortions, Transgender rights.

In recent past, the Supreme court of India has allowed all women, regardless of their marital status, to terminate their pregnancy up to 24 weeks to have access to safe and legal abortion care. SC ruled over its 51-year-old abortion law i.e. The Medical Termination of Pregnancy Act 1971 which barred unmarried women to have abortion which are up to 24 weeks old with the help of Registered Medical Practioners (RMPs). The latest amendment to the MTP act was made in 2021 wherein the ambit of reproductive rights of women was extended. The amendment of 2021 has specified seven categories of women who are permitted to abortion under section 3B of MTP Act, these categories are: survivors of rape, incest, minors, women experiencing a change of marital status (widowhood or divorce), women with disabilities, women with fetal anomaly and those living in emergency, disaster, or humanitarian crises.

On 29th September 2022, the Supreme court of India in the judgment of X v. Principal Secretary Health and Family Welfare Department, (2022) has changed the legal perspective towards abortion and decisional autonomy of all women, regardless of her marital status. In the aforesaid case, the anonymous petitioner moved to High Court Delhi seeking to terminate her pregnancy through RMPs, the HC rejected her plea since the petitioner was an unmarried woman, her case is “clearly not covered” under the ambit of Rule 3B of the MTP Rules. She filed special leave petition before the SC, wherein Justice Chandrachud noted for the changing social circumstances and how the law must not remain static, and that it should change according to the present social circumstances. The Court relied on precedents to articulate a right to reproductive autonomy as a manifestation of the right to decisional autonomy extending to one’s sexual and reproductive health, which are integral parts of right to privacy, self-determination and right to dignity under articles 14 and 21 of the Constitution of India.

This judgment of SC in 2022, along with the MTP (Amendment) Act, 2021 and other recent changes in society, the scope of abortion rights of women in India has become wider. Some of the important changes regarding termination of pregnancy by women in India include: First, the SC expanded the scope of termination of pregnancy to every pregnant person in India to have a right to reproductive decisional autonomy, including transgender and gender-variant persons. Second, the court extended the period of 20 weeks to 24 weeks to avail abortion. It was held that the decision to give birth and raise a child shall depend on the material circumstances, it shall be the prerogative right of the pregnant persons whether to keep the child or not. Third, the court clarified that the rape as a ground for abortion shall include marital rape also. Fourth, the court has also held that abortion under MTP being a beneficial legislation, the RMPs should offer safe abortion services without any extra-legal conditions such as spousal or family consent, documents or judicial authorization. Further, the court harmoniously read MTP with Protection of Child from Sexual Offences (POCSO) Act, 2012, wherein it gave certain directions to the government to have safe and convenient abortion for adolescents and RMPs must be available in every district to provide services to all pregnant persons including marginalized persons with sensitivity and care. As a final point, Justice Chandrachud also remarked that decriminalizing abortions will give “chilling effect” to RMPs, that may aid them to grant abortions without involving the courts. And the decision to terminate an unwanted pregnancy now confers only with the pregnant person in India, making it a rights-based legal framework.

To conclude; India’s legal framework is more forward-looking as compared to other countries such as United States which is a developed country, but still US has been restricting any freedom on the women regarding termination of their pregnancy both historically, and at present. Further, the government should make improvement in public policies that shall strive for the betterment of all women and their reproductive rights, rather than drawing red lines wherein it gets difficult for the women to have abortions, which infringes their reproductive rights.

Author:- : ASHI SANGWAN, BA LLB, GGSIPU (FIMT)

 

 

FAQ

1. What is the Judgement of Supreme Court regarding abortion?

Answer:- The Supreme Court of India had issued several judgments related to abortion. One significant judgment is the 2017 case of “Suchita Srivastava v. Chandigarh Administration,” in which the Court clarified the legal provisions surrounding abortion in India. The judgment upheld a woman’s right to make choices regarding her reproductive health and clarified the conditions under which abortion can be performed.

2. What are the Landmark cases on abortion in India?

Answer:- In India, several landmark cases related to abortion have shaped the legal landscape. Here are a few notable cases:

(1). Suchita Srivastava vs. Chandigarh Administration (2009): This case clarified the legal provisions for abortion in India and emphasized a woman’s right to make reproductive choices.

(2). Nandini Sundar vs. Union of India (2016): This case highlighted the need for safe and accessible abortion services, particularly in conflict areas.

(3). MTP Act Amendment (2020): In 2020, the Medical Termination of Pregnancy (MTP) Act was amended to increase the gestational limit for abortion and make it more accessible for women.

These cases, among others, have played a significant role in defining the legal framework for abortion in India.

3. Supreme Court judgement on abortion as a fundamental Right

Answer:- The Supreme Court of India had recognized a woman’s right to choose to have an abortion as a fundamental right under Article 21 of the Indian Constitution. This landmark judgment was in the case of “Suchita Srivastava vs. Chandigarh Administration” in 2009, where the court ruled that a woman’s right to make reproductive choices is a fundamental right.

 

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