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X v. Govt. of NCT of Delhi [SC 2022]
Facts of the case
The appellant is an Indian citizen and a permanent resident of Manipur. At the time of the institution of the Writ Petition the appellant was carrying a single intrauterine pregnancy corresponding to a gestational age of twenty-two weeks. The appellant is an unmarried woman aged about twenty-five years, and had become pregnant as a result of a consensual relationship.
The appellant wished to terminate her pregnancy as “her partner had refused to marry her at the last stage.” She stated that she did not want to carry the pregnancy to term since she was wary of the “social stigma and harassment” pertaining to unmarried single parents, especially women. The appellant stated that the continuation of the unwanted pregnancy would involve a risk of grave and immense injury to her mental health.
The appellant sought permission to terminate her pregnancy in terms of Section 3(2)(b) of the Medical Termination of Pregnancy Act 1971.
This Court, by its order dated 21 July 2022 permitted the appellant to terminate her pregnancy. A Medical Board was constituted at the All India Institute of Medical Sciences. The report submitted by AIIMS indicates that the termination of the pregnancy was safely carried out.
Substantial question of law
As the case involves a substantial question of law, this Court has taken it up for further consideration. The significant issue which comes up for determination in this appeal turns on the interpretation of Rule 3B of the MTP Rules.
In India, termination of pregnancies is to be done strictly in terms of the MTP Act. The MTP Act specifies the requirements to be fulfilled for terminating a pregnancy.
The MTP Rules govern various aspects of the medical termination of pregnancies: Rule 3B, recently amended by the Medical Termination of Pregnancy (Amendment) Rules 2021,is relevant for the purposes of the present discussion. It governs the categories of women under clause (b) of sub-section 2 of Section 3 who may have their pregnancy terminated if the length of their pregnancy exceeds twenty weeks but does not exceed twenty-four weeks.
Under the current legal framework, the MTP Act merely lays out exceptions to the provisions criminalizing abortion in Sections 312 to 318 of the IPC.
The rule of purposive interpretation
The question that arises is whether Rule 3B includes unmarried women, single women, or women without a partner under its ambit.
The cardinal principle of the construction of statutes is to identify the intention of the legislature and the true legal meaning of the enactment. Ordinarily, the language used by the legislature is indicative of legislative intent.
The equal status of married and unmarried or single women
Over the years, the Parliament has enacted legislation bringing about a congruence between the rights of married and unmarried women.
Prior to the enactment of the MTP Act, the medical termination of pregnancy was governed by the IPC. Section 312 criminalizes abortion, making any person (including the pregnant woman herself) liable for causing the miscarriage of a woman with an unborn foetus, except where the procedure is done in good faith in order to save the woman’s life.
The whole tenor of the MTP Act is to provide access to safe and legal medical abortions to women. The MTP Act is primarily a beneficial legislation, meant to enable women to access services of medical termination of pregnancies provided by an RMP. Being a beneficial legislation, the provisions of the MTP Rules and the MTP Act must be imbued with a purposive construction.
The MTP Amendment Act 2021 also extended the benefit of the legal presumption of a grave injury to the mental health of a woman on account of the failure of contraception, to all women and not just married women. In the unamended MTP Act, Explanation II provided that the anguish caused by a pregnancy resulting from a failure of any device or method used by any “married woman or her husband” for the purpose of limiting the number of children may be presumed to constitute a grave injury to the mental health of the woman. After the MTP Amendment Act 2021, Explanation I provides that the anguish caused by a pregnancy (up to twenty weeks) arising from a failure of a contraceptive device used by “any woman or her partner” either for limiting the number of children or for preventing pregnancy can be presumed to constitute a grave injury to a woman’s mental health. By eliminating the word “married woman or her husband” from the scheme of the MTP Act, the legislature intended to clarify the scope of Section 3 and bring pregnancies which occur outside the institution of marriage within the protective umbrella of the law.
Married women may also form part of the class of survivors of sexual assault or rape. The ordinary meaning of the word ‘rape’ is sexual intercourse with a person, without their consent or against their will, regardless of whether such forced intercourse occurs in the context of matrimony. A woman may become pregnant as a result of non-consensual sexual intercourse performed upon her by her husband.
It is not inconceivable that married women become pregnant as a result of their husbands having “raped” them. The institution of marriage does not influence the answer to the question of whether a woman has consented to sexual relations.
It is only by a legal fiction that Exception 2 to Section 375 of the IPC removes marital rape from the ambit of rape, as defined in Section 375.
Notwithstanding Exception 2 to Section 375 of the IPC, the meaning of the words “sexual assault” or “rape” in Rule 3B(a) includes a husband’s act of sexual assault or rape committed on his wife. 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.
In order to avail the benefit of Rule 3B(a), the woman need not necessarily seek recourse to formal legal proceedings to prove the factum of sexual assault, rape or incest. In fact, Explanation 2 triggers the legal presumption as to mental trauma “where any pregnancy is alleged by the pregnant woman to have been caused by rape.”
This artificial distinction between married and single women is not constitutionally sustainable. The benefits in law extend equally to both single and married women.
Constitutional values animating the interpretation of the MTP Act and the MTP Rules
Certain constitutional values, such as the right to reproductive autonomy, the right to live a dignified life, the right to equality, and the right to privacy have animated our interpretation of the MTP Act and the MTP Rules.
The right to reproductive autonomy
The ambit of reproductive rights is not restricted to the right of women to have or not have children. Reproductive rights include the right to access education and information about contraception and sexual health, the right to decide whether and what type of contraceptives to use, the right to choose whether and when to have children, the right to choose the number of children, the right to access safe and legal abortions, and the right to reproductive healthcare.
The decision to have or not to have an abortion is borne out of complicated life circumstances, which only the woman can choose on her own terms without external interference or influence. Reproductive autonomy requires that every pregnant woman has the intrinsic right to choose to undergo or not to undergo abortion without any consent or authorization from a third party.
The right to reproductive autonomy is closely linked with the right to bodily autonomy. The consequences of an unwanted pregnancy on a woman’s body as well as her mind cannot be understated. The foetus relies on the pregnant woman’s body for sustenance and nourishment until it is born. Therefore, the decision to carry the pregnancy to its full term or terminate it is firmly rooted in the right to bodily autonomy and decisional autonomy of the pregnant woman.
Suchita Srivastava v. Chandigarh Administration rightly recognised that the right of women to make reproductive choices is a dimension of personal liberty under Article 21.
Decisional autonomy is an integral part of the right to privacy. Decisional autonomy is the ability to make decisions in respect of intimate relations.
The right to decisional autonomy also means that women may choose the course of their lives. Besides physical consequences, unwanted pregnancies which women are forced to carry to term may have cascading effects for the rest of her life by interrupting her education, her career, or affecting her mental well- being.
Article 21 of the Constitution recognizes and protects the right of a woman to undergo termination of pregnancy if her mental or physical health is at stake. Importantly, it is the woman alone who has the right over her body and is the ultimate decision- maker on the question of whether she wants to undergo an abortion.
The right to dignity
The right to dignity encapsulates the right of every individual to be treated as a self-governing entity having intrinsic value. Dignity has been recognized as a core component of the right to life and liberty under Article 21.
If women with unwanted pregnancies are forced to carry their pregnancies to term, the state would be stripping them of the right to determine the immediate and long-term path their lives would take. Depriving women of autonomy not only over their bodies but also over their lives would be an affront to their dignity. It is this right which would be under attack if women were forced to continue with unwanted pregnancies.
In the context of abortion, the right to dignity entails recognising the competence and authority of every woman to take reproductive decisions, including the decision to terminate the pregnancy.
Purposive interpretation of Rule 3B furthers the constitutional mandate
Where two constructions of a provision are possible, courts ought to prefer the construction which gives effect to the provision rather than rendering the provision inoperative. It seems to us that to give Rule 3B a restrictive and narrow interpretation would render it perilously close to holding it unconstitutional, for it would deprive unmarried women of the right to access safe and legal abortions between twenty and twenty-four weeks if they face a change in their material circumstances, similar to married women.
The object of Section 3(2)(b) of the MTP Act read with Rule 3B is to provide for abortions between twenty and twenty-four weeks, rendered unwanted due to a change in the material circumstances of women. In view of the object, there is no rationale for excluding unmarried or single women (who face a change in their material circumstances) from the ambit of Rule 3B. A narrow interpretation of Rule 3B, limited only to married women, would render the provision discriminatory towards unmarried women and violative of Article 14 of the Constitution.
Prohibiting unmarried or single pregnant women (whose pregnancies are between twenty and twenty-four weeks) from accessing abortion while allowing married women to access them during the same period would fall foul of the spirit guiding Article 14. The 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.
Our interpretation of the MTP Act and Rules furthers India’s obligations under international law.
Reiterating the positive obligations of the State
The state has a positive obligation under Article 21 to protect the right to health, and particularly reproductive health of individuals. In terms of reproductive rights and autonomy, the state has to undertake active steps to help increase access to healthcare (including reproductive healthcare such as abortion).
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