Supreme Court judgment on abortion stands out as an exception in gender autonomy jurisprudence

In what will echo as a pathbreaking decision for a long time, the Supreme Court, on Thursday, ruled that all women, irrespective of their marital status, are entitled to safe and legal abortions in India. Overturning the decision of the Delhi High Court to refuse relief to an unmarried woman seeking an abortion, the Supreme Court’s ruling marks the dawn of a new era as it calls upon society and institutions of state to acknowledge, accept, and reflect the changing social realities and social mores concerning gender and liberty.

The Court dismissed the constitutionally superfluous distinction that the Medical Termination of Pregnancy Act, 1971 (and its subordinate legislation) erected between married and unmarried women for the purposes of seeking legally safe abortion. It resorted to the anti-stereotyping principle and held that to suggest that the 2021 Rules protect only married women will perpetuate the idea that only married women can indulge in sexual intercourse. As the norms of free choice and gender autonomy would dictate, women have the authority to exercise their sexual agency as a matter of right.

However, it will be dangerous to confuse the salubrious effect of this exceptional moment as a medico-juridical norm in the field of gender autonomy jurisprudence in India and beyond.

The global judicial onslaught on the primary ideal defining liberalism – autonomy – is too prominent to be slighted. Constitutional courts across continents did not flinch either during their endeavour to legitimise the colonial contours of consent (as witnessed in the partial upholding of the marital rape exception to the penal law on rape in India) or while rationalising their inability to trace the textual origins of abortion back to the American constitutional text (the decision in overturning the long-held position on the legality of fetal abortions in the US). The decision of another Indian constitutional court ratifying the ban on wearing hijab for female Muslim students in educational institutions is, again, highly indicative of this global culture of “compelled reticence”. The instances could be multiplied.

The limited attempt in this article is to suss out the features of autonomy and delineate the constitutional treatment that autonomy as a value deserves. Barring the lone exception of Thursday’s decision, personal autonomy within jurisprudence can be temporarily referred to as “qualified autonomy” (QA). Generally, personal autonomy may be understood as the freedom to conduct one’s life without paternalistic or moralistic interference by the state. Bodily, decisional, and sexual autonomies are just subsequent manifestations of personal autonomy.

This recent jurisprudence on decisional bodily autonomy reimagines a unique Model of Constitutional Rights (MCR – “Model”) and displays three peculiar features (which also aid the Model’s sustenance). To that limited extent, the September 29 decision is a radical departure from the general posture of these courts on the subject and is, therefore, kept outside the realm of the Model analysed here.

First, the Model overhauls the core value in consent by manufacturing an artificial hierarchical distinction between the types of consent that deserve legal protection and those that do not. It lacerates the basic agreement that “consent is simply consent” — there are no subjections, provisos, or qualifiers. Second, it institutionalises a “zeitgeist-type” of legal paternalism on matters of personal and sexual autonomy — what to wear, and in the name of protecting the social institution that marriage is, when to resist (or when not to), etc.

Third, and most importantly, the Model signals towards an ominous trend — these courts’ categorical abnegation of their foundational duty to preserve and uphold the most fundamental constitutional values. It blows up the “constitutional cover” to bodily autonomy by consigning the fate of matters of sexual autonomy to legislative negotiations. While overruling the decision in Roe v Wade, the American apex court returned the authority to regulate abortion to “the people and their elected representatives”. A strongly entrenched culture of fundamental rights, both in the US and India, mounts a credible challenge to the position which conveniently neglects the fact that the power to judicially review statutes is primarily for the protection of individual rights and liberties.

These three strands of the Model collectively attempt to tease out responses to a broader set of concerns — what does it mean to say that someone enjoys a right to bodily autonomy? What does this right consist of? A very rich understanding of this issue is visible through some of the observations of the Canadian Supreme Court in its decision in R. v. Morgentaler (1988). The Court observed, “[s]tate interference with bodily integrity and serious state-imposed psychological stress, at least in the criminal law context, constitutes a breach of security of the person”. The Court further opined how compelling a woman to carry her pregnancy to term constitutes “a profound interference with [her] body and thus an infringement of security of the person”. The Canadian Supreme Court inverted the very debate on criminalising abortions by instead phrasing the same as a question on interference with bodily integrity.

The Canadian precedent is a useful springboard. One of the most serious challenges posed by the “qualified autonomy” regime is, as we witnessed, that it fails to acknowledge that the right to bodily autonomy may be so intricately linked to its bearer that it may only be for her to be able to legitimately waive it or modify its terms of invocation. The position advocated here must also be explicitly contrasted with a possible radical/liberal feminist response on the debate, which may, for instance, term how the “choice” of sporting a hijab is no “real” choice but just a cruel and coercive cultural and religious imposition.

The reasoning of the Indian Supreme Court on this is equally instructive. In the seminal Puttaswamy verdict (2017), Justice D Y Chandrachud firmly grounds the concept of individual autonomy, as an individual’s ability to make choices and decide on how to develop her personality – that’s what constitutes the fundamental right to privacy. The most logical inference from this dictum is that autonomy as a truly normative value is by design capable of manifesting such roles, which could successfully revolt against — as Justice Chandrachud phrased in 2017 — the “demands of homogeneity”. Accordingly, leaving bodily autonomy out of our arguments on abortions or criminalisation of marital rape, heavily jeopardises its significance in arguments about rapes outside marriage, casual sexism and sexual harassment at workplaces, female genital mutilation, and wife battering cases.

Thursday’s decision marks an interesting turn of events: In addition to redefining the law on abortions, the apex court’s verdict on abortion provides a strong fillip to the demands for the criminalisation of marital rape as well. In paragraph 71, the Court observed that “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.”. This observation will supply much-needed oxygen to some of the appeals against the marital rape exception decision of the Delhi High Court pending before the Supreme Court, which may be taken up anytime soon.

The entire discussion may have portrayed how autonomy as a value acquires eminence only in matters involving a woman and her body. However, its ameliorative role as the controlling value in the domain of socioeconomic policy formulation is no less pivotal. The legitimacy of the intended outcomes of the Aadhar scheme is the most classic example of this facet of the autonomy jurisprudence in India. The nuance, however, lies in how the constitutional courts across the world devise a system of rights’ jurisprudence, where the individual’s autonomous choice spearheads the debate without latching onto the regressive norms of gender, society, and their associated unfreedoms.

The writer is a Supreme Court lawyer