• Nasreen Basheer

Is the Indian judiciary heralding a new age of feminist jurisprudence?

Is the Indian judiciary heralding a new age of feminist jurisprudence?

In September this year, the Supreme Court of India, while hearing a woman’s petition to permit the termination of their pregnancy, remarked that, “reproductive autonomy requires that every pregnant woman has the intrinsic right to choose to undergo or not to undergo abortion without any consent or authorization from a third party”. In times when reproductive rights are facing severe threats globally, the Apex Court’s observation invigorates struggles for bodily autonomy everywhere. Strewn with feminist interpretations of existing laws in the country, the final judgement in the case warrants a closer examination as a study in feminist jurisprudence.

The Case

In July 2022, a woman approached the High Court of Delhi seeking permission to terminate a 23-week pregnancy. The woman had recently ended a consensual relationship and estimated themselves to be financially unable to support a child. The High Court dismissed the petition on the grounds that the case did not satisfy the conditions in Rule 3B of the Medical Termination of Pregnancy Rules, 2003, which lays down the circumstances that qualify a woman to opt for a termination of pregnancy, provided they are no more than 24-weeks pregnant. As per Rule 3B, to be considered eligible for a termination of pregnancy a woman must be covered by at least one of seven sub-clauses. She must: be a survivor of sexual assault or incest, be a minor, undergo a change of marital status while pregnant, have physical disabilities, be mentally ill, be carrying a fetus with malformations, or be in a setting deemed a humanitarian disaster or emergency by the government. Since the petitioner in the case was an unmarried woman who satisfied none of the above conditions, the High Court instructed the woman to carry the pregnancy to term. The woman filed an appeal to the Supreme Court with an additional plea that the Union Government include unmarried pregnant women under the ambit of the MTP Rule 3B. In response to the woman’s main requests, the Supreme Court passed an ad interim order that a Medical Board be constituted as specified in the MTP Rules to assess whether the fetus could be aborted without danger to the woman, in which case the termination was to be done without delay. The Court then took the woman’s plea regarding the inclusion of unmarried women under the ambit of Rule 3B for further consideration, since it involved a “substantial question of law”.

The Judgment

A three-judge bench of the Supreme Court gave its final judgment in the last week of September, which touched upon several matters of significance to the future of reproductive and decisional autonomy. The bench, in a rare instance, also emphasized that the judgment be seen as applicable to non- cis-gendered persons who may require a termination of pregnancy.

With regard to the woman’s prayer that unmarried women be guaranteed the protections enjoyed by married women, the Court stated thus:

“If Rule 3B(c) was to be interpreted such that its benefits extended only to married women, it would perpetuate the stereotype and socially held notion that only married women indulge in sexual intercourse, and that consequently, the benefits in law ought to extend only to them. This artificial distinction between married and single women is not constitutionally sustainable.”

The Court further stated that the law must not be interpreted through narrow lenses established by “…patriarchal principles about what constitutes “permissible sex”…”. Through these observations, the Court challenges the conservative notions that surround pre-marital relationships, sex, and pregnancy in the country. The judgment also makes specific mention to issues faced by unmarried couples with respect to access to contraceptives and safe abortions due to the stigma associated with pre-marital sex. Furthermore, the Court challenges traditional notions of ‘family’ that are pervasive in Indian society. In a powerful statement that is sure to reverberate across time, the bench agreed that familial relations may be “domestic, unmarried partnerships, or queer relationships”.

Another segment of the judgement that generated much conversation in the country was one surrounding pregnancies arising out of marital rape, which is a topic that India has a long and contentious relationship with. The Supreme Court held that, for the purpose of interpreting the Medical Termination of Pregnancy Act, 1971, marital rape is to be considered sexual assault and that, pregnancies arising out of marital rape ought to be, consequently, considered eligible for termination. In stating so, the Court upheld the primacy of a woman’s autonomy over her body, which it affirms is a Fundamental Right guaranteed by the Constitution. Considering that reproductive coercion is a serious issue faced by several women in the country, the Court’s insistence on upholding women’s reproductive autonomy as a Constitutional right is a vital development.

In sum, the judgment places women’s decisional and bodily autonomy to be of prime importance. The Court reiterates that, barring cases in which the person requesting for an abortion is a minor or mentally ill, the woman’s consent is the only requirement for a Resident Medical Practitioner (RMP) to proceed with a termination. The Court further acknowledged that, in many cases, RMPs have been found to ask for additional documents and/or familial consent, which it points out are “extra-legal requirements” with “no basis in law”. This observation by the Court signifies a shift from the primacy attached to the Medical Board’s opinions in the past to the consent of the woman.

What Next?

Despite the progressiveness of the judgment discussed so far, to bring about operational changes to the existing scenario, the country needs legislation that can reflect the observations made by the judicial bench in this case. Adequate laws and effective enforcement are crucial to make a difference to the large numbers associated with the country’s unsafe abortions rate. The judgment repeatedly refers to the lack of sex education in the country and the ensuing unawareness among young adults and older women about contraceptives, safe sex, and abortions. It is vital that the government take the effort to educate target populations about such topics. It must also persevere to dismantle the conservative norms that exist in society by which the status of women in families and societies is equated to their childbearing abilities. For the Constitution and the Courts of the land to guarantee women’s reproductive autonomy, the women must, first, be made aware that they are eligible to such a right.

Tracing the history of feminist activism and legal reforms in India, Rukmini Sen argues that ‘feminist laws’ in the country have always focused more on the rights of the “‘married’, ‘respectable’” woman than those of the “‘single’, ‘immoral’” woman. This Supreme Court judgment is, without doubt, a step away from past trends and indicative of an emerging field of feminist jurisprudence that recognizes the intersectional dimensions of reproductive rights. While this is worth celebrating, it must not be forgotten that there is still much work to be done with respect to changing public attitudes towards abortions and dissassociating the stigma attached to the topic. Law and its related fields remain elitist topics in the country, which are, often, incomprehensible and uninteresting to the less privileged sections of Indian society. Hence, for the waves of this judgment to wash over the general public, it is vital that adequate connection mechanisms be established between the upper and lower echelons of society. Above all, it is important that when building an enduring societal attitude towards inclusive bodily autonomy, the proper systemic foundations are laid. Education is key.


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