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CASE COMMENTARY: X VS. THE PRINCIPAL SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT

Author: Maria Hermina, BA LLB (Hons.) from Tamilnadu National Law University


Special Leave Petition(Civil) No. 12612 of 2022 and Civil Appeal No. 5802 of 2022 arising out of the Special Leave Petition


Abstract

The social climate around the globe is at a very sad state right now. Women are being deprived of their rights everywhere. In the Constitution of India, Article 14,19 and 21 protect the rights of women. All fundamental rights are enshrined within those articles. In this article, the recent judgement declaring that unmarried women also have an equal right to abortion will be analysed. The facts, analysis and a conclusion if brought out by analysing the case law. A further look into the judgement with the adjoining essential case laws will be analysed. This particular right of the right to abortion is covered under the right to personal liberty enshrined in the Article 21 of the Constitution of India which will be analysed in detail. Along with that the essential laws which carry the right to abortion and its guidelines and restrictions, which is the MTP Act and its rules will also be analysed.

Keywords: MTP Act, abortion, personal liberty, progressive


“Notions of social morality are inherently subjective and the criminal law cannot be used as a means to unduly interfere with the domain of personal autonomy”


The Medical Termination of Pregnancy Act, 1971 or better known as the “MTP Act” was introduced to ensure that the personal autonomy of women over their bodies were protected. According to a 2009 statistics, every year, worldwide, about 42 million women with unintended pregnancies choose abortion, and nearly half of these procedures, 20 million, are unsafe. Some 68,000 women die of unsafe abortion annually, making it one of the leading causes of maternal mortality (13%). It was a welcoming regulation[i]. Under the IPC, Section 312 states that “Causing miscarriage.—Whoever voluntarily causes a woman with child to miscarry, shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if the woman be quick with child, shall be punished with imprison­ment of either description for a term which may extend to seven years, and shall also be liable to fine. (Explanation.—A woman who causes herself to miscarry, is within the meaning of this section)”. The section in the IPC is still intact. Whereas, the MTP Act, 1971 lays down procedure and exceptions under which safe abortion can be done. The MTP Act, 1971 came into effect following the recommendations of the Shah Committee. Later developments to the Act are the MTP Rules, 2003 and the Medical Termination of Pregnancy (Amendment) Rules, 2021. A recent judgement of the three judge bench of the Hon’ble Supreme Court of India has interpreted the provisions to include unmarried women under the purview of the MTP Act, 1971 and the Rules, 2003 and 2021. This judgement has been revolutionary for the reasons that it has emphasised the constitutional rights of Articles 14 and 21 to the Petitioner and all the women. The judgement is also progressive and noteworthy for various other reasons which will be discussed hereunder.


Facts

  1. Petitioner is an unmarried woman who was in a consensual relationship that terminated.

  2. Petitioner discovered that she was 22 weeks pregnant as on 5TH July 2022

  3. The Petitioner had filed a writ before the Delhi High Court praying the court to:

a. permit her to terminate the pregnancy

b. restrain the respondent from taking coercive action

4. Direct the Respondent to include unmarried women under Section 3(2) of MTP Act, 1971.

5. The Petitioner due to her financial situation and social stigma had prayed for the termination before the Court but the High Court restricted to Prayer C but no notice issued on a and b.

6. Thereby, SLP was filed before the Hon’ble Supreme Court.

A. Section 3: When pregnancies may be terminated by registered medical practitioners. –

(2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner,

(a) where the length of the pregnancy does not exceed twenty weeks, if such medical practitioner is, or


(b) where the length of the pregnancy exceeds twenty weeks but does not exceed twenty-four weeks in case of such category of woman as may be prescribed by rules made under this Act, if not less than two registered medical practitioners are, of the opinion, formed in good faith, that

(i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or

(ii) there is a substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality.


Explanation 1. For the purposes of clause (a), where any pregnancy occurs as a result of failure of any device or method used by any woman or her partner for the purpose of limiting the number of children or preventing pregnancy, the anguish caused by such pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.


Explanation 2. For the purposes of clauses (a) and (b), where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by the pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.


The three judge bench makes the following inferences from the Section 3(2) of the MTP Act,1971:

  1. It recognises the amendment made to the MTP Rules, 2003 through the MTP(amendment) rules, 2021 regarding the time frame fixed and procedure for medical termination of pregnancy. Previously, the position of law was that post 22 weeks of pregnancy and upto 24 weeks, one has to file a writ before the respective high courts to gain permit to abort the foetus. This was a long and tedious process and one that was not beneficial to the petitioners as it was not time sensitive and accessible, thereby being counterproductive. Whereas, as of now, one can with the opinion of two medical practitioners, abort the foetus of upto 24 weeks without any judicial intervention.

  2. The court has undertaken purposive interpretation instead of the rigorous restrictive interpretation. Thus through purposive interpretation, the court has opined that under the purview of Section 3(2), women includes unmarried women as well. Not including unmarried women under the purview of this Act would be depriving them of the right to a safe abortion without any rationale behind it.

  3. Further, the court also refers to explanation 1 under this Act and notes how the term ‘partner’ has been used in the place of the term ‘husband’ thus indicating that the legislation is meant to be interpreted more liberally to include all women. The intent behind the Act is not to take a restrictive approach and deprive unmarried women, women in live in relationships and women in other unconventional relationships from the right and access to safe abortion. So the court concludes and states that therefore the interpretation should include unmarried women and thus the court was right in awarding the right to safe abortion to the Petition. The supreme court, thereby clearly differs in its stand from the Delhi High Court which passed a contradictory judgement.

  4. The court has also proceeded to interpret the section with reference to the explanation 1 to emphasise on the aspect of mental health and states that the court should interpret the section in a way that it ensures that the mental health of women should be protected.

  5. The court in the Civil appeal arising out of the Special Leave Petition, states that In accordance to the terms of Section 5 of the Maternity Benefit Act 1961[ii], the payment of maternity benefits is extended to all women (including unmarried women) by the use of the phrase “every woman.”Thereby, this Act should be interpreted in line with the Maternity Benefits Act to include all women.

B. The court includes ‘marital rape’ under the purview of ‘rape’ for the purposes of interpretation of the Section 3(B) of the MTP Rules, 2003.

C. The court’s decision upholds the following constitutional rights of the Petitioner.

  1. Justice K.S. Puttaswamy (Retd.) and Anr v. Union of Indiaand Ors[iii] recognizedawoman's decision whether to givebirth or not as anaspect of her right to life with dignity and right to privacy under Article 21 of the Constitution.

  2. Women's reproductive choice is an integral part of theirindividualfreedoms under Article 21 of the Constitution. She has anunalienable right to physicalintegrity, the CourtrecognizedinSuchitaSrivastavav. Chandigarh Administration[iv]that women's right to reproductive autonomy is anaspect of Article 21 of Constitution.

  3. Denying an unmarried woman the right to safe abortion violates her personal autonomy and freedom. In S Khusboo v. Kanniammal[v],the Court ruled that criminal law should not be usedasaweapon to interfere with individual autonomy. It also violates Article 14 of the IndianConstitution.

  4. In KesavanandaBharati v. Kerala[vi],dignity was foundtobe part of the basic constitutionalstructure.This is a fundamental value in our legal system.The concept of dignity is the very foundation of the Constitution and the rights enshrined therein. Dignity isinherent in every humanbeing and is an integral aspect of humanity. The Court hereby affirms the claimant's right to dignity under Article 21 of the IndianConstitution.


Suggestions

  1. There is no mention of a time limit within which the medical board has to give a decision with respect to the case put before them.

  2. Amendments need to be made in the law in itself with the changes proposed by this case law.


Conclusion

It is important to note that the Court took into concern the social taboo and the financial constraint of the Petitioner while passing the judgement but did not make it specific to her social conditions and opined that ‘all unmarried women’ should be included under the purview of women while interpreting the Act. One can infer that through this, the constitutional rights of all women are protected irrespective of what social conditions they may be from. It is thus a welcoming change to all women to know that the judiciary is protecting the autonomy over their bodies and what they choose to do with it. The transcending form of interpretation is the one required for this day and time more than ever with the judiciary continuously passing judgements that is far from safeguarding the personal liberty of women. Roe V Wade[vii]was a significant judgement passed by the US Supreme Court which conferred the right to abortion. With the overturning of Roe V Wade and other regressive judgements being passed by the Judiciary, one can go to the extent of satisfactorily stating that such a welcoming judgement amidst the times of disbelief of the people in the judiciary,can clearly be a beacon of hope. If judgements were to be passed in a way that was inclusive like this, it would re build the faith of the people in the judiciary.

[i]Hadded, Lisa, Unsafe Abortion: Unecessary Maternal Mortality, National Library of Medicine [ii] (1) Subject to the provisions of this Act, every woman shall be entitled to, and her employer shall be liable for, the payment of maternity benefit at the rate of the average daily wage for the period of her actual absence, that is to say, the period immediately preceding the day of her delivery, the actual day of her delivery and any period immediately following that day. [iii] (2017) 10 SCC 1 [iv] (2009) 9 SCC 1 [v] (2010) 5 SCC 600 [vi] AIR 1973 SC 1461 [vii] 410 US 113(1973)

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