Supreme Court's historic judgement on abortion: Here are the key takeaways from the order


Supreme Court of India | Photo: ANI

New Delhi: The Supreme Court verdict on Thursday in the X [anonymous] vs Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi, is one of the most progressive verdicts in the recent history of the judiciary in India. It will set a base for many litigations in the future, including the ongoing plea on marital rape.

The petitioner is a Manipur native who resides in Delhi. She approached SC after the high court declined her plea for medical termination of pregnancy evolved from an unmarried consensual relationship. It was an interim order. While doctors analysed the situation of pregnancy, the case was transferred to SC for interpretation of certain clauses of the MTP Act. SC delivered the verdict on Thursday.

Here are the top comments from the order of Justices DY Chandrachud, A S Bopanna and J B Pardiwala that you should not miss.

1. "Before we embark upon a discussion on the law and its application, it must be mentioned that we use the term “woman” in this judgment as including persons other than cis-gender [sex assigned at birth] women who may require access to safe medical termination of their pregnancies"

2. "We are of the opinion that significant reliance ought to be placed on each woman’s own estimation of whether she is in a position to continue and carry to term her pregnancy."

3. "In some situations, unmarried women face particular barriers [to seek proper abortion methods] due to gender stereotypes about women’s sexual autonomy outside marriage"

4. The MTP Act is a provider-centric law. Since women’s right to access abortion is conditional on the approval by an RMP [Registered Medical Practitioner], the denial of services by an RMP compels women to approach courts or seek abortions in unsafe conditions. The chilling effect — historically associated with protection of freedom of speech and expression under Article 1925 — has an impact on the decision-making of medical professionals acting under the MTP Act and consequently impedes access to safe and legal abortions and the actualization of women’s fundamental right to reproductive autonomy."

5. "Extra-legal requirements (consent from the woman’s family, documentary proofs, or judicial authorisation) have no basis in law. As noted above, 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 social stigma that women face for engaging in pre-marital sexual relations prevents them from realizing their right to reproductive health in a variety of ways."

7. "While much of law’s benefits were (and indeed are) rooted in the institution of marriage, the law in modern times is shedding the notion that marriage is a precondition to the rights of individuals (alone or in relation to one another). Changing social mores must be borne in mind when interpreting the provisions of an enactment to further its object and purpose."

8. The expression “mental health” has a wide connotation and means much more than the absence of a mental impairment or a mental illness.

9. "The determination of the status of one’s mental health is located in one’s self and experiences within one’s environment and social context."

10. "Mental health and mental illness, although sound similar, are not the same.”

11. "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. We would be remiss in not recognizing that intimate partner violence is a reality and can take the form of rape. The misconception that strangers are exclusively or almost exclusively responsible for sex- and gender-based violence is a deeply regrettable one."

"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."

"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. Neither Explanation 2 to Section 3(2) nor Rule 3B(a) require that the offender be convicted under the IPC or any other criminal law for the time being in force before the pregnant woman can access an abortion. Further, there is no requirement that an FIR must be registered or the allegation of rape must be proved in a court of law or some other forum before it can be considered true for the purposes of the MTP Act."

12. "The proscription contained in the POCSO Act does not – in actuality – prevent adolescents from engaging in consensual sexual activity... The taboos surrounding pre-marital sex prevent young adults from attempting to access contraceptives. For the limited purposes of providing medical termination of pregnancy in terms of the MTP Act, we clarify that the RMP, only on request of the minor and the guardian of the minor, need not disclose the identity and other personal details of the minor in the information provided under Section 19(1) of the POCSO Act."

13. "A woman is often enmeshed in complex notions of family, community, religion, and caste. Such external societal factors affect the way a woman exercises autonomy and control over her body, particularly in matters relating to reproductive decisions. Societal factors often find reinforcement by way of legal barriers restricting a woman’s right to access abortion. 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."

14. "The right to reproductive autonomy is closely linked with the right to bodily autonomy. As the term itself suggests, bodily autonomy is the right to take decisions about one’s body. 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. The biological process of pregnancy transforms the woman’s body to permit this. The woman may experience swelling, body ache, contractions, morning sickness, and restricted mobility, to name a few of a host of side effects. Further, complications may arise which pose a risk to the life of the woman. A mere description of the side effects of a pregnancy cannot possibly do justice to the visceral image of forcing a woman to continue with an unwanted pregnancy. 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."

"The right of every woman to make reproductive choices without undue interference from the state is central to the idea of human dignity. Deprivation of access to reproductive healthcare or emotional and physical well-being also injures the dignity of women."

15. "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 law should not decide the beneficiaries ofa statute based on narrow patriarchal principles about what constitutes “permissible sex”, which create invidious classifications and excludes groups based on their personal circumstances."

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