IN THE SUPREME COURT OF INDIA
2016 14 SCC 382
Union of India
Date of Judgement
July 25th, 2016
Justice Jagdish Singh Khehar; Justice Arun Mishra
Indian courts have issued several notable decisions that recognize women’s reproductive rights as part of the “inalienable survival rights” implicitly protected by the fundamental right to life. In certain innovative sentences, the courts have even recognized for the first time reproductive rights as essential for the equality of women and have called for respect for women’s rights to autonomy and decision-making on pregnancy. In cases involving maternal health, contraception, abortion and child marriage, Indian courts have adopted strong definitions of “reproductive rights” that reflect human rights standards.[i]
Reproductive rights are essential for the realization of all human rights. They cover a spectrum of civil, political, economic and social rights, from the rights to health and life to the rights to equality and non-discrimination, privacy, information and to be free from torture or ill-treatment. The Constitution of India recognizes many of these rights as fundamental rights that the government has an obligation to defend, including the right to equality and non-discrimination (Articles 14 and 15) and the right to life (Article 21) that it is understood through jurisprudence to include the rights to health, dignity, freedom from torture and ill-treatment, and privacy.[ii]
India is also a signatory to numerous international conventions, such as the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW); the International Covenant on Civil and Political Rights (ICCPR); the International Covenant on Economic, Social and Cultural Rights (ICESCR); and the Convention on the Rights of the Child (CRC), all of which recognize reproductive rights.[iii]
The Supreme Court of India and several High Courts have made significant progress in recognizing the denial of reproductive rights as violations of the fundamental and human rights of women and girls. In 2008, the Human Rights Law Network of India began filing a series of petitions in the High Courts throughout India seeking responsibility for deaths and injuries related to pregnancy, which resulted in judicial recognition of women’s rights to survive pregnancy and childbirth as a fundamental right.
In 2011, the Delhi High Court issued a historic decision in the case of Laxmi Mandal v. Deen Dayal Harinagar Hospital & Ors.[iv] with respect to denials of maternal health care to two women living below the poverty line. The Court stated that “these requests focus on two inalienable survival rights that are part of the right to life: the right to health (which would include the right to access and receive a minimum standard of treatment and care in health centers public) and in particular the reproductive rights of the mother “. Citing CEDAW and the ICESCR, the decision held that “no woman, especially a pregnant woman, should be denied the ease of treatment at any stage, regardless of her social and economic background. This is where the right inalienable to health is so inherent in the right to life is enforced.”
In 2016, the Supreme Court issued a ruling in the case of Devika Biswas v. Union of India & Ors.[v] that went beyond the reproductive health framework to also recognize women’s autonomy and gender equality as central elements of reproductive rights protected by the Constitution of India. Lawsuits for violations of reproductive rights that arise from coercive and low-quality sterilization and lack of access to the full range of contraceptive methods have been filed with the Supreme Court of India and the High Courts for more than a decade.
Recent jurisprudence on abortion in India also reflects a progressive evolution in the judicial articulation of reproductive rights. Although in 2004, the Supreme Court ruling undermined women’s reproductive autonomy by arguing that a woman’s decision to undergo an abortion or sterilization without her husband’s consent could constitute mental cruelty, subsequent judicial decisions have moved towards greater Constitutional protection of this right. In 2009, the Supreme Court recognized women’s reproductive autonomy as a fundamental right, stating that “There is no doubt that a woman’s right to make reproductive decisions is also a dimension of” personal freedom “as understood in Article 21.”[vi]
Criminal restrictions on the practice of abortion are contained in the statutes, in other words, laws passed by legislatures, sometimes as part of criminal codes, which consolidate a group of criminal laws. In the United Kingdom, for example, abortion was criminalized in sections 58 and 59 of the Offences Against the Person Act of 1861, with a more defined aspect in the Infant Life Preservation Act of 1929, and then allowed by certain grounds and conditions in Great Britain (but not Northern Ireland) in the Abortion Act of 1967, which was then amended in the Human Fertilization and Embryology Act of 1990. In the Abortion Act of 1967, the legal basis for abortion is established as exceptions to the criminal law, however, in 1861 the law is still in force and is still used to prosecute illegal abortions today.[vii]
At the end of the twentieth century, abortion was legally permitted to save the life of the woman in 98% of the world’s countries.[viii] The proportion of countries allowing abortion on other grounds was as follows: to preserve the woman’s physical health (63%); to preserve the woman’s mental health (62%); in case of rape, sexual abuse, or incest (43%); fetal anomaly or impairment (39%); economic or social reasons (33%); and on request (27%).
Constitutional and Statutory Provisions Discussed:
- Section 3 and 5 of Medical Termination of Pregnancy Act, 1971.
A Medical Board comprising of the seven doctors was constituted at the KEM Hospital and Medical College, Mumbai, in furtherance of the direction issued by the Supreme Court. Obstetric examination shows 24 weeks of pregnancy, with severe polyhydramnios, with fetal parts not felt. On internal examination, the cervix is closed and high up. Radiological diagnosis is a single live fetus with a gestational age of 23 weeks 3 days with some malformations.
Based on the medical examination it was found that the current pregnancy is of about 23-24 weeks. Also, in view of severe multiple congenital anomalies, the fetus is not compatible with extra-uterine life. There is a risk to the mother of continuation of pregnancy that can gravely endanger her physical and mental health. And it was found and advised by the Medical Board that the risk of termination of pregnancy is within the acceptable limits.
- Whether it would be justified and legal, to terminate the pregnancy of the petitioner, which the Medical Report itself shows, as of 24 weeks duration?
Arguments of the petitioner:
- The counsel for the petitioner submitted that the report by the competent hospital reflected that abortion could have been carried out with the permission of the Court.
- A perusal of Section 5 of the Act reveals that the termination of pregnancy, which is necessary to save the life of the pregnant woman, is permissible.
- It was further contended that the Act of 1971, also provided for an explanation clause which says, if a woman alleges that pregnancy is caused due to rape then the court in such situations will presume that a grave injury is caused to the mental health of the woman.[ix]
Arguments of the Respondents:
- Learned Attorney General representing the Union of India argued that Section 3 of the Medical Termination of Pregnancy Act, 1971 deals with termination of pregnancies of different durations and the procedure contemplated. Section 3 contemplates that it is not permissible to terminate a pregnancy, after 20 weeks.
- A woman’s right to make reproductive decisions is also a dimension of her “personal freedom” under Article 21 of the Constitution “and that the right to bodily integrity allows her to terminate her pregnancy.
- A clear finding has been recorded by the Medical Board, that the risk to the petitioner of continuation of her pregnancy, can gravely endanger her physical and mental health. The Medical Board has also expressed advice that the patient should not continue with the pregnancy.
- Section 5 of the Act reveals that the termination of pregnancy, which is necessary to save the life of the pregnant woman, is permissible.
Relevancy and applicability:
While India was one of the first countries in the world to develop legal and policy frameworks that guarantee access to abortion and contraception, women and girls continue to experience significant barriers to the full enjoyment of their reproductive rights, including poor quality of women’s health services and denial and decision-making authority of girls. Historically, laws and policies related to reproductive health in India have failed to adopt an approach based on women’s rights, but instead have focused on demographic objectives, such as population control, while they have also implicitly undermined or explicitly the reproductive autonomy of women through discriminatory provisions, such as the spouse’s consent requirements for access to reproductive health services.
Although India’s National Population Policy guarantees women voluntary access to the full range of contraceptive methods, in practice state governments continue to introduce schemes promoting female sterilization, including through targets, leading to coercion, risky substandard sterilization procedures, and denial of access to non-permanent methods.[x]
UN human rights experts and organizations have expressed concern to the Indian government about human rights violations that arise from a variety of reproductive rights issues, including maternal mortality and morbidity, unsafe abortion and poor quality of post-abortion care, lack of access to the full range of contraceptive methods and dependence on coercive and low-quality female sterilization, child marriage and lack of information and education on reproductive and sexual health. These experts and agencies have asked India to address these violations, as well as disparities in access to reproductive health care.[xi] The courts of India have an important role to play in guaranteeing the reproductive rights of women guaranteed by their constitutional and human rights.
The case of Ms. X v. Union of India[xii] illustrates the significant and evolutionary role that the judiciary can play in India to address the legal and practical barriers that operate to deny women and girls their reproductive rights. While litigation has its challenges, including long deadlines and difficulty in implementing decisions, the strong recognition of reproductive rights as fundamental rights that arise from Indian courts has created a mandate for the government to move away from population control approaches, confront discriminatory stereotypes that limit women’s authority and, instead, focus women’s rights to dignity, autonomy and bodily integrity in laws and policies related to reproductive health. The judiciary also has a key role to play in monitoring the implementation of existing decisions.
In addition, in the coming years, Indian courts will decide in long-standing pending cases, such as those seeking progressive interpretations or the reform of the MTP Law or the strengthening of the legal framework that prohibits child marriage, as well as on emerging issues such as the subrogation. This creates a strong call for the judiciary to continue defending women’s reproductive rights to include both reproductive health and autonomy.
Edited by Parul Soni
Approved & Published – Sakshi Raje
[i] Devika Biswas v. Union of India, (2016) 10 SCC 726.
[ii] Parmanand Katara v. Union of India, (1989) 3 S.C.R.997.
[iii] Apparel Export Promotion Council v. Chopra (1999) 1 SCR 117.
[iv] Laxmi Mandal v. Deen Dayal Harinagar Hospital & Ors, (2010) 172 DLT 9.
[v] Supra note 1.
[vi] Suchita Srivastava & Anr v. Chandigarh Administration, (2009) 11 S.C.C. 409.
[vii] Sally Sheldon, The Decriminalisation of Abortion: An Argument for Modernisation, Oxford Journal of Legal Studies, Vol. 36, No. 2 (2016), pp. 334–365 doi:10.1093/ojls/gqv026.
[viii] United Nations Population Division. Abortion policies: A global review, http://www.un.org/en/development/desa/population/publications/abortion/abortion-policies-2002.shtml (Last visited Feb 11, 2020, 8:00 P.M).
[ix] Murugan Nayakkar v. Union of India, 2017 SCC OnLine SC 1902.
[x] Supra note 7.
[xi] Committee on the Rights of the Child, Concluding Observations: India, U.N. Doc. CRC/C/ IND/CO/3-4 (2014); CEDAW Committee, Concluding Observations: India, U.N. Doc. CEDAW/C/IND/CO/4-5 (2014); Joint Communication Letter to India, Mandates of the Working Group on the issue of discrimination against women in law and practice; the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health; the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment; and the Special Rapporteur on violence against women, its causes and consequences (2015).
[xii] Supra note 4.