Is the Indian judiciary heralding a new age of feminist jurisprudence?
Updated: Dec 6, 2022
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.
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”.
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.
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.
Endnotes  X v. The Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi & Anr., 2022,  SCC OnLine SC 1321, p. 27.  X v. The Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi, 2022,  SCC OnLine Del 2171.  The Medical Termination of Pregnancy Rules, 2003 (henceforth, the MTP Rules, 2003), was created to lay down the procedure to be followed by the medical practitioner, the petitioner, and the Medical Board (constituted especially for the purpose as laid down in Rule 3A), when terminating a pregnancy. (See: MTP Rules, 2003, available at: http://www.bareactslive.com/ACA/ACT140.HTM).  Jahnavi Sindhu and Vikram Aditya Narayan, “How the Supreme Court’s Abortion Judgement Strengthens the Right to Autonomy,” The Wire, October 04, 2022.  X v. The Principal Secretary…, 2022,  SCC OnLine SC 1321.  Rohin Bhatt, “Gestational change in India’s abortion jurisprudence,” The Leaflet, October 03, 2022.  X v. The Principal Secretary…, 2022,  SCC OnLine SC 1321, p. 04.  “Ibid”  “Ibid, 26” “Ibid, 33”  Premarital relationships are viewed as a threat to the concepts of marriage and ‘‘family’, which are considered sacred in the country. For this reason, premarital sexual relationships and resulting pregnancies are frowned upon, and much stigma is associated with these. (See: Bhandari, 2017).  X v. The Principal Secretary…, 2022,  SCC OnLine SC 1321, p. 15.  Efforts to criminalize marital rape has been ongoing for a while in the country, but has constantly generated backlash and opposition. For example, in January, 2022, the High Court of Delhi, while hearing a petition on the same, questioned the Union Government on why marital rape has not been criminalized in the country, to which the Government replied that doing so would engander the sacred institution of marriage. Feminist protests against the Union Government’s efforts to stop criminalizing marital rape was met with a large-scale online attack from Men’s Rights Activists (MRAs) who started a hashtag movement #MarriageStrike on Indian social media. The MRAs argued that if men were going to be harassed for having sex with their wives, consensual or forced, then they would prefer to not marry at all. (See: The Wire, 2022, available at: https://thewire.in/women/may-marriagestrike-remain-for-centuries-indian-women-respond-to-twitter-trend).  The Medical Termination of Pregnancy Act, 1971, and the Medical Termination of Preganacy (Amendment), 2021, are the two major legislations governing abortion in India. These will, henceforth, be referred to as MTP Act, 1971.  Jay Silverman et. al., “Reproductive Coercion in Uttar Pradesh, India: Prevalence and Associations with Partner Violence and Reproductive Health”, SSM - Population Health 9, (November, 2019).  In the case of minors or mentally ill women, permission is to be obtained from the individual’s guardian (See: MTP Act, 1971).  X v. The Principal Secretary…, 2022,  SCC OnLine SC 1321, p. 09.  Radhika Roy, “SC’s Abortion Judgment Shifts Focus of Law from Doctors to Rights of Women,” The Quint, October 02, 2022.  Studies have found that nearly 67% of abortions in India are carried out in an unsafe manner, which causes approximately 8 deaths a day. (See: UNFPA, 2022)  Rohin Bhatt, “Gestational changes…,” 2022.  Rukmini Sen, “Mapping Women’s Activism in India: Resistances, Reforms and (Re)-Creation,” in Routledge Handbook of Gender in South Asia, ed. Leela Fernandes (London: Routledge, 2014).
Bhandari, Parul. “Pre-marital Relationships and the Family in Modern India.” South Asia MultiDisciplinary Academic Journal 16 (August, 2017).
Bhatt, Rohin. “Gestational change in India’s abortion jurisprudence.” The Leaflet, October 03, 2022. https://theleaflet.in/gestational-change-in-indias-abortion-jurisprudence/.
Government of India. Medical Termination of Pregnancy Act. New Delhi: 1971.
Government of India. Medical Termination of Pregnancy Rules. New Delhi: 2003. Accessed October 10, 2022. http://www.bareactslive.com/ACA/ACT140.HTM.
Roy, Radhika. “SC’s Abortion Judgment Shifts Focus of Law from Doctors to Rights of Women.” The Quint, October 02, 2022. https://www.thequint.com/neon/gender/sc-abortion-focuses-on-reproductive-rights-of-women#read-more#read-more.
Sen, Rukmini. “Mapping Women’s Activism in India: Resistances, Reforms and (Re)-Creation.” In Routledge Handbook of Gender in South Asia, edited by Leela Fernandes. London: Routledge, 2014.
Silverman, Jay G., Sabrina C. Boyce, Nabamallika Dehingia, Namratha Rao, Dharmoo Chandurkar, Priya Nanda, Katherine Hay, et al. "Reproductive Coercion in Uttar Pradesh, India: Prevalence and Associations with Partner Violence and Reproductive Health." SSM - Population Health 9 (November, 2019).
Sindhu, Jahnavi and Aditya Narayan, Vikram. “How the Supreme Court’s Abortion Judgement Strengthens the Right to Autonomy.” The Wire, October 04, 2022. https://thewire.in/law/how-supreme-courts-abortion-judgment-strengthens-right-to-autonomy.
The Wire Staff. “‘May #MarriageStrike remain for centuries’: Indian women respond to Twitter thread.” The Wire, 20 January, 2022. https://thewire.in/women/may-marriagestrike-remain-for-centuries-indian-women-respond-to-twitter-trend.
UNFPA. State of World Population 2022. United Nations Population Fund, 2022. https://eeca.unfpa.org/sites/default/files/pub-pdf/en_swp22_report_0_2.pdf.
X v. Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi. 2022.  SCC OnLine Del 2171. Accessed October 02, 2022.
X v. The Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi & Anr. 2022.  SCC OnLine SC 1321. Accessed October 02, 2022.