Reportable- Supreme Court of India
Under – Extra Ordinary Appellate JurisdictionCitation -Special Leave Petition (civil) No 12612 of 2022
|Date of Judgment- Sept 29, 2022 Bench- Justice D.Y Chandrachud, Justice S. Bopanna, Justice B. Pardiwala. Parties- X V/s (Petitioner) , Principal Secretary Health And Family welfare, Govt of NTC Delhi (Respondent)
In a case relating to women’s reproductive rights, Justice Sikri said “A women’s choice to reproduce, abort or prevent pregnancy, deals with her body. It is she who, by the virtue of her autonomy, undergoes the process eventually. It is her body. It’s her right.
He upheld women’s right to have a say in their reproductive choices. He also called for social acceptance of HER rights, giving her the right to equality guaranteed by our Constitution, without which legislation would merely remain on paper.
Autonomy of women to make reproductive choices includes her choice to have or not to have children. Her body during pregnancy bears all the immediate and long term consequences of bearing the child, so she should have a choice to make decisions relating to her body. Most often, when an unmarried couple indulge in consensual sexuality, she is socially stigmatized in matters relating not only such a relationship but also in matters of pregnancy.
By keeping this in mind, the Supreme Court in its recent judgment in case X V/S Principal Secretary Health And Family Welfare, Government of NCT Delhi in which rule 3B of Medical Termination of Pregnancy Rules 2003 was given much broader meaning.
This is a landmark judgment that expanded the scope of rule 3B to include unmarried women and survivors of marital rape that are eligible to abort pregnancy between 20 and 24 weeks.
Background of the Case
The petitioner is a 25-year BA graduate who resides in Manipur and as of now is a permanent resident of Delhi. She is the eldest of the five siblings to farmers’ parents. The issue at hand is an appeal in the Hon’ble Supreme Court against the decision of Divisional Bench of Delhi High Court dated July 15 2022. She approached the high court under writ petition to request permission to end her pregnancy of 24 weeks which arose out of a consented relationship, due to societal pressure, parents’ refusal and denial of her partner to marry her at the very last moment.
She pleaded the following
1-Doctor’s permission to have an abortion at any government facility before July 15, 2022, since the pregnancy will be of 24 weeks on the said date and any orders passed after the date will no use.
- Pass orders to stop the respondents from bringing any legal action against the petitioner’s doctors.
- Pass a resolution requesting the state to expand the scope of rule 3B to include unmarried women carrying pregnancies for upto 24 weeks to cease the same.
Delhi High Court, however, rejected her request for permission for abortion on the grounds that the Medical Termination of Pregnancy does not include the appellant’s case. Also, the court dismissed the request to pass an order stopping the respondent from taking any legal action against the appellants’ Registered Medical Practitioner Practitioners. Aggrieved by this order, the appellant approached the Hon’ble Supreme Court for relief.
- Does section 3(2) of Medical Termination of Pregnancy (MTP) Rules 2003 violate Article: 14 of the constitution?
- Does 3(2) of Medical Termination of Pregnancy (MTP) Rules 2003 covers unmarried women when it comes to abortion of pregnancy?
- Is termination of pregnancy by an unmarried women covered under Article: 21 (Right to Life) of the constitution?
- Does section 3(2) of Medical Termination of Pregnancy (MTP) Rules 2003 permit victim of marital rape to abort without the consent of husband.
- Dr Amit Mishra appearing on behalf of the appellant contended that the appellant is an unmarried women woman who does not want to continue the pregnancy as her partner refused to marry her at the last moment.
- She lacked financial resources for the continuation of the pregnancy.
- She is also not mentally prepared to raise a child all by herself. And if compelled to do so, she will be faced with tremendous physical as well as mental injury. Also, she would be socially stigmatized by this.
- Section 3B of the MTP act is discriminatory towards unmarried women; it discriminates on the basis of marital status. There is no basis to deny unmarried women the right to medically terminate the pregnancy when the same right has been given the other category of women.
- A women’s reproductive right, which includes the right to procreate and to abstain from the same, is an inherent part of Article: 21.
- Ms. Aishwarya, senior counsel and additional solicitor General contended general interpretation of the statue must be done in the light of the aim and object of the said legislation.
- Legislation must be interpreted according to the changes in society. There must not be literal interpretation of beneficial legislation. Instead, the interpreters should try to justify the purpose of the legislation.
- Rule 3B of the legislation contains the term “change in marital status” that should be read as “change in status of relationship” to include unmarried, single women, separated and deserted women.
- Further, Ms Aishwarya submitted, women enjoy the right to bodily integrity and autonomy and hence they have a right to make their decisions.
Overview of MRTP ACT
Overall, the Medical Termination of Pregnancy Act was enacted in 1971 to decriminalize abortion under specific circumstances and under the supervision of registered medical practitioners. The Act allowed for abortion in cases where the continuation of the pregnancy would jeopardize the life of the woman, where there were detected fetal abnormalities, where immediate intervention was necessary to safeguard the woman’s life, or where it would cause substantial harm to the woman’s mental or physical health. Amendments were introduced in 2021 to address evolving needs and advancements in medical science, including authorizing abortion upon the assent of one medical practitioner within 12 weeks, requiring the opinion of two medical practitioners within 20 weeks, and allowing abortion up to 24 weeks for specified categories of women. The amendment also expanded the scope of the legal framework to encompass pregnancies outside the institution of marriage.
Judgment of the Supreme Court
The court took the view that saving the petitioner from suffering an unwanted pregnancy by allowing her to abort. The petitioner cannot be denied the benefit just because of her marital status as it does not hold any nexus with the aim and object of the legislation.
The court was of the view that forcing any women to continue the pregnancy would violate her bodily integrity and subject her to mental trauma. Denying an unmarried woman to tight to safe abortion would be a violation of Article: 14 as well as Article: 21.
In the case, Khushboo v/s Kanniammal be held that the criminal law should not be weaponized to interfere in personal domains.
In the case of K.S Puttaswamy (Retd.) and anr v/s Union of India – the decision of a women to abstain from procreating is an integral facet of the right to life with dignity and privacy under Article: 21 of the constitution.
As a result, the court upheld the intent of the legislation and progressively interpreted the statute.
Interim orders passed
1- Ordered AIIMS All India Institute of Medical Sciences, Delhi to set up a Medical Board under section 3(2D).
2- If the Medical Board finds that the fetus can be aborted without endangering the petitioner’s life, a team of AIIMS doctors should carry out the abortion process.
3- Before the abortion is performed, fresh written consent of the petitioner shall be sought.
4- A report shall be furnished to the court within 1 week.
In this case, the court interpreted the MTP Act in the light of existing societal realities and did not restrict its view prevalent societal norms.
The old legislation of 1971 was concerned with only married women to the exclusion of other categories of women, but the Amendment act of 2021 did not distinguish between women based on their marital status.
The object of section 3(2)(b) of the MTP Act was to provide for the option of abortion between 20 to 24 weeks due to a change in their marital status.
The court upheld the right of reproductive autonomy given to unmarried women are same as that of a married women. The judgment provided unmarried women with the right to have a safe and legal abortion between 20 and 24 weeks if they faced a change in their marital circumstances.
- There is no prescribed time limit within which the Medical Board has to give their decision with respect to matters referred to it.
- Indian Kanoon – https://indiankanoon.org/doc/123985596/
- Kushboo v/s Kanniammal https://www.simplekanoon.com/family-law/s-khushboo-vs-kanniammal-1488/
- K.S Puttaswamy (Retd.) and anr v/s Union of India- https://privacylibrary.ccgnlud.org/case/justice-ks-puttaswamy-ors-vs-union-of-india-ors#:~:text=Case%20Brief&text=The%20nine%20Judge%20Bench%20in,of%20dignity%2C%20autonomy%20and%20liberty.
- MTP ACT – SECTION 3 (2) (B) –https://indiankanoon.org/doc/312960/
Author – Mansi Kabir
College – ILS Law College Pune.