The Supreme Court responded in a deeply thoughtful manner, by first laying a context for the constitutional rights of unmarried women to be grounded in. (Illustration by C R Sasikumar)On September 29, 2022, in X v the Principal Secretary, Health and Family Welfare Department, Government of NCT, three judges of the Supreme Court, Justice D Y Chandrachud, Justice A S Bopanna and Justice J B Pardiwala, in a unanimous decision, allowed an unmarried woman to terminate her pregnancy. The senior-most judge of the panel, Justice Chandrachud, authored the judgment.
Now, readers might be unsurprised to know that the young, unmarried, and courageous appellant Ms X, who was pregnant because of a consensual relationship, faced statutory obstacles in accessing an abortion. The statutory obstacles were in terms of Section 3(2) (b) of the Medical Termination of Pregnancy Act 1971 (MTP Act) and Rule 3 B (c) of the Medical Termination of Pregnancy Rules 2003 (MTP Rules). And the law treated her unmarried status as an impediment in enabling her to access an abortion.
First, let us wade into the legal provisions — Section 3(2) (B) of the MTP Act enables pregnancies to be terminated by registered medical practitioners if the length of the pregnancy is within 20 weeks. Further, if the pregnancy is between 20 and 24 weeks, then two registered medical practitioners must form an opinion that the continuation of the pregnancy would involve a risk to the life of the pregnant woman or will cause grave injury to her physical and mental health. It also allows termination if there is a substantial risk that the child, if born, would suffer from a serious physical or mental abnormality.
Importantly, MTP Rule 3B establishes categories of women who can terminate pregnancy between 20 and 24 weeks. The categories that the rule allows access to abortions are — survivors of sexual assault, those undergoing a “change in status of relationship” (for instance, divorce or death of spouse), those who are physically challenged or mentally ill and where the foetus is malformed or may suffer from mental or physical abnormalities. Clearly, on a plain reading, “unmarried women” were not included among women who can access abortions when the pregnancy is between 20 and 24 weeks.
When the 25-year-old Ms X reached the Supreme Court, after her plea was rejected by the Delhi High Court, she was a little under the legally significant 24-week deadline. The Delhi High Court had ruled that Section 3 (2) (b) of the MTP Act was inapplicable to unmarried women, and hence Ms X could not access an abortion.
As the hearings got underway, the Union of India, through the Additional Solicitor General Aishwarya Bhati, made constitutionally compelling arguments — including that modern legislation must be read in view of the evolution of society and that the terminology “change of marital status” must be read to include unmarried or single women.
The Supreme Court responded in a deeply thoughtful manner, by first laying a context for the constitutional rights of unmarried women to be grounded in. Single or unmarried women who are pregnant, the court notes, are confronted by “social stigma that women face for engaging in pre-marital sexual relations and this prevents them from realising their right to reproductive health in a variety of ways”.
What does a thoughtful constitutional court do, when confronted with the demands of a transformative constitution in a situation such as this? It steps up to the challenge by looking at changed societal realities and applies techniques of interpretation of the law that enable a statute to transform with time in a manner constitutionally warranted.
The question the court framed was whether Rule 3B includes unmarried women, single women or women without a partner under its ambit. This simple question brought clarity to the adjudicative task ahead. The court felt the answer to their question could be arrived at by “imparting a purposive interpretation to Rule 3B”. This means that one should avoid a literal interpretation and look at the intention of the legislature. In doing so, the court notes that changing social mores must be borne in mind when interpreting the provisions of an enactment to further its object and purpose.
What sets our Supreme Court apart from many other constitutional courts is its willingness to examine changing social realities. This is a court that understands that their adjudicative obligation is to be able to discern changing mores — in this case, the varied contexts of relationships and families. This constitutional gaze, along with the mandate of our “transformative constitution”, has resulted in some of the most dynamic decisions by our court.
For instance, the Court in this case of Ms X writes that the transformative nature of the constitution has been emphasised in Navtej Singh Johar where Section 377 of the Indian Penal Code, 1862, was decriminalised. The Supreme Court also cites it previous decisions that recognised “modern and atypical” forms of familial relations, including live-in relationships, single parent households, households formed by remarriages with children from earlier relationships, or same-sex families as being deserving of constitutional protections.
Finally, the court in Ms X reasons that the legislature has always intended for married or unmarried or single women to be on par and have equal status through consistent reform of laws pertaining to adoption and succession, amongst others. Such reforms were intended to benefit women. This the court linked to other beneficial legislation including the one impugned in the present case, and concludes that “whole tenor of the MTP Act is to provide access to safe and legal medical abortions to women.” Remarkably, while the court reviews the various categories of women who are prima facie enabled to access abortions, it also discusses that a woman may become pregnant because of non-consensual sexual intercourse with her husband and may become pregnant. As the court observes “the nature of sexual violence and the contours of consent do not undergo a transformation when one decides to marry.”
The court memorably concludes that to give Rule 3B a restrictive and narrow interpretation would render it perilously close to holding it unconstitutional. For, to irrationally discriminate between married and unmarried women in the context of access to abortions would violate the right to equality, to reproductive autonomy, privacy, and dignity of the latter. By its decision in Ms X, the Supreme Court speaks to an equal citizenship of all women in their varied personhoods and forms — as unmarried or married or single or in live-in relationships or cis or otherwise. This decision is a firm constitutional foundation for the autonomy of all women by enabling the full exercise of their reproductive choice, irrespective of relationship status.
The writer is a Senior Advocate at the Supreme Court