“A woman’s right to reproductive choice is an inseparable part of her personal liberty under Article 21 of Constitution. She has a sacrosanct right to bodily integrity.”
- Justice Dr. D.Y. Chandrachud; J Surya Kant; J A.S. Bopanna; [1]
In the recent times abortion and reproductive rights of women have been discussed extensively , after the infamous case of Dobbs, State Health Officer Of The Mississippi Department Of Health, Et Al. V. Jackson Women’s Health Organization,[2] wherein the Supreme Court of United States overturned Roe vs Wade, the landmark case establishing the constitutional right for abortion in 1973. At this juncture, the Indian Supreme Court, created history. After a long drawn battle for the reproductive rights of women, the Apex Court in the case of X vs The Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi & Anr, opined that, “rights of reproductive autonomy, dignity, and privacy under Article 21 give an unmarried woman the right of choice on whether or not to bear a child, on a similar footing of a married woman.”[3] It further went on to state that, “The right of every woman to make reproductive choices without undue interference from the state is central to the idea of human dignity.”[4]
This historic decision by the Apex Court, can be lauded for another reason as well. In a first, the Court has acknowledged the existence of what is called marital rape, though restricting itself for the meaning of this case solely. It has stated that, “the meaning of rape must therefore be understood as including marital rape, solely for the purposes of the MTP Act and any rules and regulations framed thereunder.”[5]
Abortion has been a widely debated topic over time. More so because apart from the medical issues which may arise, the focus has been only social aspect of it. The stigma, the family pressure and also the difficulties in accessing facilities for abortion. Doctors, seem uncomfortable to proceed with an abortion and often push the woman into various legal procedures, which are not required. It has been clarified that, it is only the “woman’s consent (or her guardian’s consent if she is a minor or mentally ill) which is material.” [6]The medical professionals are asked not to impose extra legal conditions wherein the woman is asking for the termination of pregnancy in accordance with the law. [7]
Another, aspect of which ruling, which makes it stand out in today day and age is the acknowledging of the concept of “consent.” If an adult woman has consented to terminate her pregnancy, for whatever reason it may be, that decision should be respected. Consent from the woman’s family is and should be completely immaterial. Further, the fact that “intimate partner violence is a reality”, has been emphasized herein, which goes to saying that, the pregnancy was a result of rape. The granting of reproductive autonomy of a woman upholds the basis of consent and that, choice is important. [8]
The right of abortion or reproductive right is a Fundamental Right enshrined under Article 21 of the Constitution of India. Giving the woman right to undergo is a basic human right which every individual is entitled. The marital status of a woman should not in any way be a factor in deciding whether or not a woman should undergo abortion. In case of a pregnancy, reliance should be placed on the opinion and understanding of the woman herself to distinguish whether she is in a position to continue and carry to term her pregnancy.
X vs The Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi & Anr,[9] has come at a time, when the state of women’s rights are at a turmoil. The stand taken by the American Supreme Court, along with the ever present social stigma in India, has made abortion even more difficult for a woman. In spite of there being precedent, like the case of High Court on its Own Motion v. State of Maharashtra, wherein it was held that, “compelling a woman to continue any unwanted pregnancy violates a woman’s bodily integrity, aggravates her mental trauma and has a deleterious effect on the mental health of the woman because of the immediate social, financial and other consequences flowing from the pregnancy, ”[10] abortion is a practice which is seen with much disdain. [11]
Very often while talking about abortion, the question of the rights of the unborn child is brought up and in some aspects that may even be right. However, abortion, is primarily an issue of choice. A choice, a right of a woman over her own body. And, the right to make a decision about her body should solely rest with her, and no one else. Most women, are afraid to undergo abortion, not because of medical reasons but because of the social stigma attached to it. The thought of being ostracized from society stops her from exercising her own fundamental right. This is in cases where the woman is unmarried. For, married woman, the challenge is altogether different. The so called “reputation” of the family among other things takes precedence over the wants of the woman, the person who would be carrying the child. As a woman living in 21st century India, the right to terminate one’s pregnancy should be a right, a choice and not a privilege. There are several cases wherein the girl is teenager who was a victim of rape, and who was impregnated as a result of this. Expecting a fifteen year old girl to carry a child is unreasonable and unfair. At a time when, the world is reeling in the shock of the judgment of the United States Supreme Court, this order passed by the Supreme Court of India brings with it a hope, a sense of relief, that all is not lost. This is an initial step in the fight for women’s rights. But, it is a step, a significant one, which will pave the way for a safer India, for today and tomorrow.
Submitted by,
Nayantara Bhattacharyya,
Advocate, Calcutta High Court.
[1] X Versus The Principal Secretary Health And Family Welfare Department & Anr , Special Leave to Appeal (C) No(s).12612/2022; 21-07-2022, 2022 LiveLaw (SC) 621. [2] Dobbs, State Health Officer Of The Mississippi Department Of Health, Et Al. V. Jackson Women’s Health Organization, https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf [3] Para 121, X Versus The Principal Secretary Health And Family Welfare Department & Anr [4] Para 116, X Versus The Principal Secretary Health And Family Welfare Department & Anr [5] Para 75, X Versus The Principal Secretary Health And Family Welfare Department & Anr [6] Para 23, X Versus The Principal Secretary Health And Family Welfare Department & Anr. [7] Ibid. [8] Para 98, , X Versus The Principal Secretary Health And Family Welfare Department & Anr. [9] Supra 1. [10] High Court on its Own Motion v. State of Maharashtra, 2016 SCC OnLine Bom 8426 [11] Para 65, X Versus The Principal Secretary Health And Family Welfare Department & Anr.
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