Notably, the SC judgment talks of familial and conjugal violence, including women who conceive out of marital rape among those who can seek termination of pregnancy within the specified period. The Supreme Court has delivered a seminal judgment that could have a significant impact in enlarging and expanding women’s reproductive rights in the country. The apex court bench comprising Justices DY Chandrachud, Surya Kant and AS Bopanna said that all women — whether married or in consensual relationships, and including “persons other than cis-gender women” — are entitled to seek an abortion within 20-24 weeks of the pregnancy. The bench was hearing the case of a 25-year-old unmarried woman, whose plea for termination of her pregnancy in the 24th week was turned down by a division bench of the Delhi High Court on the ground that the Medical Termination of Pregnancy Rules, 2003, did not extend to unmarried women in consensual relationships.
In a country where the woman’s body has, more often than not, been a site of the patriarchy index, the Supreme Court’s recognition of her right to equality and, equally significantly, to her agency and choice, is momentous. In recent times, in comparison to many other countries, including the US — where the landmark Roe vs Wade judgment granting constitutional validity to the right to abort was recently overturned — abortion laws in India have moved in a more progressive direction, but much more needs to be done. Under Section 312 of the Indian Penal Code, 1860, abortion remains a criminal offence, to which the MTP Act provides exceptions, and, even within the wider ambit of the much-needed recent amendments to the law, it continues to adhere to hetero-patriarchal structures that make the approval of others integral to abortion-related services and do not recognise a broader gender spectrum. Five decades after the Medical Termination of Pregnancy (MTP) Act was passed in 1971, the MTP (Amendment) Act, 2021, introduced crucial and welcome changes, including the right to terminate unwanted pregnancies caused by contraceptive failure. Now, in calling for a less restrictive and more “purposive interpretation” of the amendments and seeking to further free them from social conservatism, the Supreme Court on Thursday has opened up valuable room for greater freedom. The support of the law is only the first step in what is, in reality, a harrowing fight for reproductive and bodily autonomy on the ground, but it is crucial.
Notably, the SC judgment talks of familial and conjugal violence, including women who conceive out of marital rape among those who can seek termination of pregnancy within the specified period. While the judgment specifies its validity only within the purview of the MTP (Amendment) Act, it remains to be seen how this will be implemented, given that marital rape is still not a criminal offence in India. Yet, in its recognition of every woman as the arbiter of her own body and in respecting her right to choose, Thursday’s judgment is important and laudable.