This article has been authored by Aryan Bhat, a second-year student at National Law University, Delhi.
Feminist jurisprudence in India seems to have received an impetus in recent times through judgements such as Joseph Shine v Union of India, where the Supreme Court held the offence of adultery violative of articles 15,14 and 21 of the Constitution. In Independent Thought v Union of India, the Court recognised marital rape by husband of his minor wife as a criminal offence under section 375, Indian Penal Code (“IPC”). Earlier this year, Supreme Court in Secretary,Ministry of Defence v Babita Puniya ruled that women officers in the armed forces are eligible for permanent commission and command posts irrespective of years of service. Despite the progress made so far, many laws still exist which deny sexual autonomy to women to make choices for what affects them. Abortion is one of them. In July 2017, the Supreme Court rejected the abortion plea of a 10-year old rape survivor, despite her parents’ repeated demands for the same, on grounds that the doctors had assessed that any such abortion would be too “risky” for her and hence not in her “best interests”.
In India, abortion, though legal is a qualified right. It is governed by the Medical Termination of Pregnancy Act,1971 (“the Act”). Under the Act, abortion is only available on medical grounds i.e. only if the continuation of pregnancy involves a risk to the health of the woman or a grave injury to her mental or physical health. Abortion may also be available if the continuation of pregnancy would involve a substantial risk that the child, if born would be seriously handicapped. Pregnancy could only be terminated either before twelve weeks of pregnancy or after twelve weeks but before twenty weeks from the start of the same. Beyond twenty weeks, termination shall only be available if such termination is immediately necessary to save the life of the woman.
The law therefore, is highly restrictive. Moreover, the decision to terminate pregnancy too, is taken solely by medical practitioners (one Registered Medical Practitioner if the termination is sought before twelve weeks from start of pregnancy and two when sought between twelve and twenty weeks of pregnancy) and makes no provision for circumstances where a woman would be able to terminate her pregnancy by her own volition. The Medical Termination of Pregnancy (Amendment) Bill,2020 was introduced this year which proposes many amendments to the principal Act. The bill seeks to enhance the upper gestational limit to twenty-four weeks from the present twenty weeks for the vulnerable women and for pregnancies with substantial foetal anomalies detected at a very later stage. It also provides for safeguards to ensure a woman’s informational privacy. Nonetheless, the amendments still don’t address the central concerns pertaining to reproductive rights and agency of a woman.
The article seeks to explain how the MTP Act and the proposed amendments are highly paternalistic, reinforce the patriarchal notions of society and hence not consistent with a woman’s sexual autonomy which is a part of her right to privacy under Article 21 of the Indian Constitution.
The Case for Reproductive Rights
Reproductive Rights is an umbrella term which requires that an individual shall have control over all affairs of her/his sexual and reproductive life. United Nations Population Fund defines reproductive rights to include all rights that govern, inter alia the right to decide the number, timing and spacing of children, voluntarily marry and establish a family and the right to attain the highest standard of reproductive health. These rights were also included in many subsequent conventions, most notably in articles 10 and 16 of the Convention for Elimination of all Forms of Discrimination Against Women (CEDAW)- which India has ratified as well. In KS Puttaswamy v Union of India (9J), the Supreme Court declared privacy to be a fundamental right under Article 21 of the Indian Constitution. Hailed as a progressive judgement, the apex court, setting out the broad contours of the concept of privacy, linked it to human dignity and held that privacy means the right to be left alone in an inviolable core against arbitrary intrusions of the State. Additionally, it recognises the autonomy of human beings and the natural right of every person to make essential choices which affect one’s course of life which also extends to procreation and reproductive choices.
Nearly ten years ago, a similar decision, in the context of a woman’s reproductive autonomy was made by the Supreme Court in Suchita Srivastava v Chandigarh Administration. The case involved a woman with “mild mental retardation” who was impregnated upon being raped. Despite her willingness to continue with the pregnancy and a medical panel also having recommended the continuation of pregnancy, the High Court of Punjab and Haryana ordered the termination of her pregnancy. The Supreme Court, overturning the decision of the High Court held Article 21 to be inclusive of a woman’s right to make reproductive choices such as to procreate or not to procreate to respect her bodily integrity and dignity. The Court further held that the doctrine of parens patriae cannot be exercised by the State to violate the reproductive rights of a woman.
In Dr.Mangla Dogra v Anil Kumar Malhotra, the Punjab and Haryana HC held that the consent of the husband is immaterial where the wife has granted her consent to terminate her pregnancy. The Court also ruled that a woman’s personal decision to conceive cannot be interfered by anyone by forcing her to abort. Also, an unwanted pregnancy is bound to gravely affect the mental health of the woman.
It can thus, be said that reproductive rights, which recognises the rights of a woman to procreate, indulge freely in sexual acts, decide the number of children and maintain her sexual health has been embedded under Part III of the Indian Constitution as a fundamental right through judicial interpretation. The Act and the Amendment Bill of 2020 however, largely discount the control that a woman shall exert over decisions which would have serious implications upon her private and professional life. It denies them the right to voluntarily choose whether they wish to abort which undermines their sacrosanct sexual autonomy and hence, inherent dignity. The law allows termination of pregnancy, as discussed above only on medical grounds. Therefore, it doesn’t allow women to seek an abortion for non-medical reasons. For instance, a woman may wish to opt for abortion for reasons, inter alia the economic cost involved in raising a child, making career progress where the woman might consider the social and emotional costs of motherhood as an impediment or cases of forced pregnancy where the spouse might have denied use of contraceptive devices. In such cases, the woman would be left with no choice but to face the brunt of an unwanted pregnancy.
It is also curious to observe that the Act is termed as the “Medical Termination of Pregnancy” Act rather than using the more common and colloquial “abortion”. Legislative history and even the wording of the Act suggests that such a terminology is because the Act is more intended to provide protection to doctors against criminal prosecutions under section 312 of IPC than to recognise abortion as a right available to a woman as part of her bodily integrity.
At this stage, it is also essential to highlight the patriarchal assumption which underlies these restrictions. By making abortion available to women in such narrowly defined circumstances, the Act operates upon the belief that women are ordinarily happy and willing to continue their pregnancy and shall also be expected to do the same. An unwanted pregnancy therefore would cause no harm to women. It therefore, reinforces the gender stereotype that women are naturally meant to be child bearers as well as child raisers.
Restriction on Grounds of State Interest
No right can be absolute. Every legal and constitutional right is subject to certain reasonable restrictions imposed by State by following a just, fair and reasonable procedure established by law to safeguard a legitimate public interest and privacy as a fundamental right is no exception. In the Puttaswamy judgement, the Supreme Court established the following test of proportionality, (i) that there shall be a law, (ii) the interest shall be necessary in a democratic society and (iii) The infringement of the right shall be proportional to the need for such interference and (iv) Procedural guarantees shall be provided against abuse of such interference. Proportionality is essential as it ensures that a law is well-tailored to meet the purpose of the law. A balancing act of the impugned right with the State interest is required lest the law would suffer from over breath i.e. the restrictions may be too overbroad to impact even constitutionally permissible conduct beyond the interest that is sought to be achieved.
In the Suchita Srivastava case discussed above, the apex court ruled that the restrictive conditions under the Act are reasonable restrictions as the State has an interest in also protecting the prospective life of the foetus. While debate persists on the moral and legal aspects of whether the foetal interests of a potential life shall take precedence over the reproductive rights of an adult female and the juristic status of a foetus across the world , even if one assumes potentiality of the life of the unborn as a valid state interest, the current law on the subject, allowing abortion only in cases where medical opinion allows it upon being satisfied in “good faith” that the continuation of pregnancy shall harm the mental and physical health of the woman and/or result in severe handicaps for the infant, is still an overbroad restriction. This is because the present law, as established by now implicitly reflects the prevailing gender stereotypes and norms which expects a woman to conceive after marriage and considers abortion as a taboo. Legalising such patriarchal mindset forces women into such gender conformity as the cost of any nonconformity is further exacerbated by the refusal by law to provide any recourse either and leads to involuntary pregnancies by them.
To better harmonise the reproductive rights with the legitimate interests of the state, cue can be taken from the decision of the US Supreme Court in the historic case of Roe v Wade, where the Court held a woman’s right to terminate her pregnancy on request to be protected under the right to privacy under the Fourteenth Amendment of the US Constitution. While also recognising that the State shall have a legitimate interest in protecting the maternal health and potentiality of human life, the Court thus, allowed an absolute right of abortion in the initial trimester of pregnancy while granting State the right to regulate the right thereon as the foetus starts to reach the point of viability.
To conclude, it may be argued that how constitutional jurisprudence has underscored the sanctity of a woman’s reproductive autonomy and right to make choices that affect her Right to Life under the Indian Constitution. However, a woman’s free choice over her sexual and reproductive life are often found incompatible with certain state interests or the prevailing moral standards and principles of the society at large as a result of which, the sexual autonomy of a woman is often undermined. The Medical Termination of Pregnancy Act presents one such example which allows abortion as a very restrictive and conditional right which is actually made by the doctors on behalf of a woman. By this, the law exercises its parens patrae jurisdiction over adult females though they might be capable of taking rational decisions over matters like procreation, compelling them to continue with their pregnancy in many cases. A proper balance shall be struck between the right and compelling interest of the State by Indian legislature to usher a more rights-based regime on this field.