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The Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi & Anr.

1 Comment / Case Comment, Publications

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Case Brief

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  1. Case Details:
  2. X v. The Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi & Anr.
  3. Special Leave Petition (Civil) No. 12612 of  2022.
  4. Petitioner’s Adv.: Dr. Amit Mishra, Adv. Mr. Rahul Sharma, AOR.
  5. Respondent’s Adv.:  Ms. Aishwarya Bhati, ASG Ms. Ameyavikrama Thanvi, Mr. GS. Makker, AOR.
  6. Judgment By:
  7. DR. D.Y. Chandrachud; J.,
  8. A .S. Bopanna; J.,
  9. J.B. Pardiwala; J.
  10. Final Judgement Date: Sept 29, 2022
  • FACTS OF CASE:

The petitioner is permanent resident of Delhi, originally from Manipur. B.A graduate having 5 younger siblings and farmer parents. The petitioner had consensual relationship and conceived pregnancy of single intrauterine which came to her knowledge on June 5, 2020 having near to Twenty-Two weeks term completed. The Petitioner was looking for the Medical Termination of pregnancy (for short – ‘abortion’), due to inability to support such child. The petition that reached the Hon’ble Delhi High Court was about The Medical Termination of Pregnancy Act, 1971 (‘MTP ACT’) and the Medical Termination of Pregnancy Rules, 2003 (‘MTP RULE’).

  • The petitioners prayed for the following.
  • Permission for the abortion through doctors at any Government Centre or approved Private Hospital before July 15, 2022. Request for kind consideration to pass order by July 15, 2022, as the pregnancy will reach the Twenty-Four week and there will be no use of any such order post such limitation period is over.
  • Pass the order to prevent the respondents from filing any criminal charges or taking any steps against the doctors involved in the abortion process and the petitioner.

  • Pass the order to the state to include unmarried women within the purview of Rule 3B of the MTP RULE for cessation of pregnancy and under Section 3(2) clause (b) of the MTP ACT for up to twenty-four weeks.
  • Hon’ble Delhi High Court decision:

On July 15, 2022, passed the order Prayer A and B were rejected. Prayer C where the petitioner asked for the addition of an explicit unmarried woman in MTP RULE and MTP ACT was requested was considered by court.

  • The Division Bench of the Delhi High Court, by the order dated July 15, 2022, issued notice to the Respondent.

Hence aggrieved by decision of Hon’ble High Court., this SLP was preferred before Hon’ble Supreme Court by Petitioner.

  • ISSUES RAISED

Issues raised before the Hon’ble Supreme Court were as below with reference to the abortion under provisions of MTP ACT and MTP RULE:-

  • Whether unmarried women are included for the abortion under clause c of Rule 3B of the MTP RULES and in section 3(2)(b) of MTP ACT?
    • Exclusion of unmarried woman from her right to termination of unwanted pregnancy violation of her right to equality under INDIAN CONST. art. 14 ?
    • Unmarried women right to terminate the pregnancy under INDIAN CONST. art. 21 of Right to Life?
  • CONTENTIONS OF PARTIES
    • Petitioner’s Side

Dr. Amit Mishra, learned counsel appearing on behalf of the petitioner made the following submissions:

  • The petitioner is an unmarried woman, whose partner deserted her and refused to marry her. The petitioner wishes to terminate unwanted pregnancy. There shall be no bar on the same.
    • The petitioner is financially incapable to maintain a child which will put the child’s future in risk, also the petitioner is not mentally prepared to give birth to child in her adverse situation.
    • Both Rule 3B(c) of the MTP RULES and Section 3(2)(b) of the MTP ACT are discriminatory with reference to INDIAN CONST., art 14, because they exclude unmarried women from their ambit.
  • Respondent’s Side:

Ms. Aishwarya Bhati, learned senior counsel and Additional Solicitor General assisted the Court in the interpretation of Section 3(2)(b) of the MTP ACT and Rule 3B(c) of the MTP RULES. The respondent’s side, the following facts in support of the argument that Rule 3B(c) already includes the unmarried or single women who are in long continuing relationships:

  • The intention of the legislature and wordings are important to understand the law for evaluating the inclusion of unmarried women for the abortion procedure. Herein the intention is to include all women. The literal meaning is not always the right way to see it, rather liberal meaning is important.
    • If ACT is in place and subordinate RULES are there for effective implementation. MTP scenario RULE is to support the ACT and shall be within its limits. In case of conflict arose between the ACT and the RULE then the ACT will prevail. The MTP ACT and the MTP RULE (Amendment of 2021), the very specific wordings changed from married woman to “any woman” and husband is changed by “partner”. which very clearly shows it included the unmarried woman and not only in the ambit of marital relationship rather it includes any other person who is not husband of such woman and the relationship was there with consent.
    • To ensure the inclusion of unmarried or single women, the term “change of marital status” in Rule 3B(c) should be interpreted as a “change in the status of a relationship.” It would also include women separated from their spouses or yet to be divorced.
    • Live-in relationships hold the same value as marital relationships in the eyes of the law, as both entitle women to maintenance. Several statutes, like MTP Act, do not differentiate between married or unmarried women.
    • Women have the right to both bodily autonomy and independence and to choose whether to procreate. They are entitled to make their own decisions with no constraints. Even if it is a married woman, she cannot be forced to have any unwanted pregnancy by anyone, it remains her absolute right without any prejudice or bias.
  • RATIONAL APPLIED IN JUDGEMENT

The Supreme Court applied below rational in this case,

  • The MTP ACT or RULE do not imply any discrimination in married or unmarried women, so there is no violation of any equality rights available under. INDIAN CONST.,  art. 14.  Both have equal rights and the abortion is subjected to her free consent. Twenty-Four weeks term is an important condition keeping in mind the safety of women. Only rare exceptions were grave danger for the life of woman and no medical option to continue with pregnancy, it can be aborted. Similar decision was concluded in XYZ v. State of Maharashtra[1], where the pregnancy of a girl around 18 years belonging to a weaker financial section of society was allowed for the abortion process and the pregnancy was 26 weeks term. Specific cases, abortion of a minor or mentally unsound woman can proceed with her guardian’s consent. Strictly, if a girl below the age of 15 years, and such pregnancy is out of void marriage. It will attract provisions of The Protection of Children from Sexual Offences Act, 2012. (For short ref – ‘ POCSO ACT’)
    • Every pregnancy under MTP RULES up to Twenty-Four weeks can be aborted at the will of the woman. But there should be justifiable reasons and intentions like consent, without compromising the physical and mental health of women.
    • Scope of unmarried woman includes single mother and rights of procreation. Maternity leave and other benefits will be available too. The State followed the international convention of the Convention of CEDAW[2].
    • Under the Directive Principle of State Policy (for short ref – ‘DPSP’), the State is responsible for making sure any women have easy access to medical aid and the State shall make sure facilities for safe and risk-free abortion procedures are available to women.
    • Safety of pregnant women is paramount important; the period of pregnancy is a crucial factor and Twenty weeks to Twenty-four weeks is a well-established principle. Delay has significant risk on the health of women and any risk to her life shall be avoided. Another major point here such abortion process must be via Registered Medical Practitioner ONLY and in registered private hospitals or Government hospitals.
  • DEFECTS OF LAW
    • The Supreme Court gave final verdict in this case for abortion by unmarried women and concluded that such women are covered under the MTP ACT and MTP RULE. But as the MTP ACT Amendment was already in place in 2021 where the Hon’ble High Court of Delhi could have concluded this matter at its level. Considering the abortion option is a time bound affair. Any delay in proceeding could have adverse effects on the rights of such women. As an unmarried woman was covered already with Amendment hence additional appeal to the Hon’ble Supreme Court could have been avoided.
    • Judiciary has its defined hierarchy, INDIAN CONST. art. 226 and art. 32 respectively allows WRIT petitions in the High Court and Supreme Court. But when there is such a question which has urgency to get courts quick attention is a valid candidate to be approached before the Hon’ble Supreme Court directly. Not only to save time but also assure remedies can be available where time of pregnancy does not go beyond safe abortion option, which might make the whole case as an administrative matter with no help.
  • FINAL JUDGEMENT

The Apex Court concluded below details in the final judgment.

  • The AIIMS Medical Board concluded safe termination of pregnancy with consent of women is possible – The Supreme Court allowed the abortion.
    • The Hon’ble Supreme Court concluded unmarried women are covered under the ambit of MTP ACT and MTP RULE. They have equal rights and married woman for safe abortion.
    • The Hon’ble Supreme Court also noted important comment that nothing in this judgment must be taken as weakening the provisions of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection), Act 1994.
    • Current SLP before Hon’ble Supreme Court and WRIT petition before Hon’ble High Court both disposed of.
  • INFERENCE

This case is a classic example liberal, progressive, and equitable approach taken by the Indian Judiciary. Important to mention recognition of women rights and equality but another thing women need special attention and care when it comes to maternity, other benefits associated but their liberty to opt for abortion is intact as well. In a few rare cases, courts have given verdicts like XYZ v. State of Maharashtra[3] which was required to safeguard women not only about her health but mental health as well. The role of the Executive is another important factor, specifically welfare schemes like ‘Beti Padhav – Beti Bachao’ are good initiatives and expected to bring positive outcomes.

Ganesh Narke

2nd Year, LL. B student, MIT WPU, Pune

[1] Judgment dated October 06, 2021 in WRIT PETITION(L) 21977 of 2021 (Bombay High Court).

[2] United Nations Human Rights, https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-     elimination-all-forms-discrimination-against-women, Last Visited on: June 19, 2023.

[3] Judgment dated October 06, 2021 in WRIT PETITION(L) 21977 of 2021 (Bombay High Court).

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