Hon’ble Supreme Court’s ruling on Abortion rights in India

On the 29th day of September in 2022, India witnessed yet another progressive judgment from
the Apex Court of India which expanded the scope of the sexual and reproductive rights of women
in this country.

This was the case of X v. The Principal Secretary of Health and Family Welfare
Department, Govt. of NCT Delhi,

decided by a three-judge bench consisting of the Hon’ble CJI DY Chandrachud, Hon’ble Justice AS Bopanna, and Hon’ble Justice JB Pardiwala, in which case a 26-year-old woman moved to the Supreme Court pleading to terminate her 24 weeks pregnancy after being denied the same by the High Court of Delhi.

The Rule 3B(c) of the Medical Termination of Pregnancy Rules, 2003 was challenged which states that abortion would be allowed to a woman between 20 to 24 weeks of pregnancy if there is a change in the marital status of the woman (divorce or widow).

The Supreme Court held it to be discriminatory against unmarried women and extended its application to unmarried women as well.

This interpretation was taken considering the intention of the legislation, that is, safe abortion to all women experiencing a change in their relationship status with their partners (be they married partners or not).

This decision is a stepping stone towards enabling the women of India to have decision-making autonomy for their reproductive health and protect their right to privacy while they do so.

The Supreme Court stated that the artificial distinction between married and unmarried women can not be sustained and that women have the autonomy to exercise these rights freely.

The bench further pointed towards the importance of safe abortion for women.

This decision has succeeded in the amendment made to the MTP Act in the year 2021 which had
significantly changed the abortion laws of India making it more dynamic towards women’s
rights. However, this case has excellently complimented the amendment further.

The second most significant change brought through the judgment by the purposive interpretation of the statute was under Rule 3B(a) which states that the ground of abortion is available to the survivors of rape or sexual assault or incest.

The Supreme Court extended the meaning of rape to include marital rape in the definition of rape under rule 3B(a) of the MTP Rules 2003… This is the point where the judgment is so distinct and significant because the Indian Judiciary has given recognition to marital rape in legislation even though it has a limited operation in it. Section 375 of the Indian Penal Code gives the definition of rape wherein under
exception 2 of the provision it clearly exempts marital rape from the ambit of rape.

This interpretation has not overlapped with the Indian Penal Code because this decision does not
create any new offense but rather provides a ground for abortion to women who have experienced
marital rape and do not wish to continue such pregnancy. This interpretation has not overridden
the provision of IPC in any way and the exemption stays effectively operative.

The Hon’ble Chief Justice of India has time and again emphasized upon the importance of
feminism while addressing legal issues. This judgment was yet another example of a perspective towards achieving gender equality in Indian laws.

Written By: Jijnasa Panda, completed her LL.M. and is a judiciary aspirant.

Picture credit: Gayatri Malhotra/ Unsplash