X versus The Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi & Anr

X  versus The Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi & Anr

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले



1
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No 5802 of 2022
(Arising out of SLP (C) No 12612 of 2022)
X ... Appellant
versus
The Principal Secretary,
Health and Family Welfare Department,
Govt. of NCT of Delhi & Anr. …Respondents
2
J U D G M E N T
Dr Dhananjaya Y Chandrachud, J
Table of Contents
A. Background...................................................................................................4
B. Submissions .................................................................................................7
C. The Medical Termination of Pregnancy Act 1971 and the rules framed
thereunder............................................................................................................9
D. Barriers to accessing safe and legal abortions.......................................16
i. RMPs’ fear of prosecution......................................................................16
ii. Social stigma surrounding unmarried women.....................................20
E. Analysis.......................................................................................................22
i. The rule of purposive interpretation .....................................................22
ii. Transcending the institution of marriage as a source of rights .........27
a. Modern or atypical forms of familial relationships..................................29
b. The equal status of married and unmarried or single women ...............30
iii. The object and purpose of the MTP Act ...............................................32
iv. The MTP Act as an aid of interpretation: Understanding “injury to
mental health” ................................................................................................39
v. Construing Rule 3B.................................................................................43
F. Constitutional values animating the interpretation of the MTP Act and
MTP Rules ..........................................................................................................55
3
i. The right to reproductive autonomy .....................................................55
ii. The right to dignity..................................................................................62
G. Purposive interpretation of Rule 3B furthers the constitutional mandate
66
H. India’s obligations under international law..............................................69
I. Reiterating the positive obligations of the state......................................72
PART A
4
A. Background
1. Leave granted.
2. This appeal arises out of the judgment of a Division Bench of the High Court
of Delhi dated 15 July 2022. The appellant invoked the writ jurisdiction of the
High Court seeking its permission to terminate her pregnancy before the
completion of twenty-four weeks on 15 July 2022. Other ancillary reliefs were
sought. For convenience of reference, the reliefs claimed before the High
Court are extracted below:
“A. Permit the Petitioner to terminate her ongoing
pregnancy through registered medical practitioners at any
approved private or government center or Hospital before
15.07.2022 as her relief will be infructuous after that as the
pregnancy will be of around 24 Weeks by that time;
B. Restrain the Respondent from taking any coercive
action or criminal proceedings against the Petitioner or any
Registered Medical Practitioner terminating the pregnancy
of the petitioner at any approved private center or hospital
registered by Govt NCT of Delhi;
C. Direct the Respondent to include unmarried woman
also within the ambit of the Rule 3B of the Medical
Termination of Pregnancy Rules 2003 (as amended on
21.10.2021) for termination of pregnancy under clause (b)
of sub-section (2) Section 3 of the MTP Act, for a period of
up to twenty-four weeks;
D. Order an immediate Interim Relief of Stay during the
course of proceedings”
3. The appellant is an Indian citizen and a permanent resident of Manipur. She
is currently residing in New Delhi. The appellant averred that she is the eldest
amongst five siblings and that her parents are agriculturists. At the time of the
PART A
5
institution of the Writ Petition before the High Court of Delhi,
1 the appellant was
carrying a single intrauterine pregnancy corresponding to a gestational age of
twenty-two weeks. The appellant is an unmarried woman aged about twenty-five
years, and had become pregnant as a result of a consensual relationship. The
appellant wished to terminate her pregnancy as “her partner had refused to marry
her at the last stage.” She stated that she did not want to carry the pregnancy to
term since she was wary of the “social stigma and harassment” pertaining to
unmarried single parents, especially women. Moreover, the appellant submitted
that in the absence of a source of livelihood, she was not mentally prepared to
“raise and nurture the child as an unmarried mother.” The appellant stated that the
continuation of the unwanted pregnancy would involve a risk of grave and immense
injury to her mental health.
4. The appellant sought permission to terminate her pregnancy in terms of
Section 3(2)(b) of the Medical Termination of Pregnancy Act 19712 and Rule 3B(c)
of the Medical Termination of Pregnancy Rules 20033 (as amended on 12 October
2021). The appellant instituted a Criminal Miscellaneous Application4 for grant of
interim relief to terminate her pregnancy during the pendency of the Writ Petition.
5. By its order dated 15 July 2022, the High Court issued notice restricted only
to prayer C of the Writ Petition, and rejected the Criminal Miscellaneous
Application, effectively rejecting prayers A and B. The High Court observed that
Section 3(2)(b) of the MTP Act was inapplicable to the facts of the present case
1 WP(C) 10602/2022
2 “MTP Act”
3 “MTP Rules”
4 CM Application 30708/2022
PART A
6
since the appellant, being an unmarried woman, whose pregnancy arose out of a
consensual relationship, was not covered by any of the sub-clauses of Rule 3B of
the MTP Rules. The High Court held that:
“8. The Petitioner, who is an unmarried woman and whose
pregnancy arises out of a consensual relationship, is
clearly not covered by any of the Clauses under the
Medical Termination of Pregnancy Rules, 2003. Therefore,
Section 3(2)(b) of the Act is not applicable to the facts of
this case.
9. Learned counsel for the Petitioner states that Rule 3B of
the Medical Termination of Pregnancy Rules, 2003 is
violative of Article 14 of the Constitution of India, 1950,
inasmuch as it excludes an unmarried woman. Whether
such rule is valid or not can be decided only after the said
rule is held ultra vires, for which purpose, notice has to be
issued in the writ petition and has been done so by this
Court.
10. As of today, Rule 3B of the Medical Termination of
Pregnancy Rules, 2003, stands, and this Court, while
exercising its power under Article 226 of the Constitution
of India, 1950, cannot go beyond the Statute. Granting
interim relief now would amount to allowing the writ petition
itself.”
6. The order of the High Court gave rise to the present appeal. Notice was
issued on the Petition for Special Leave to Appeal on 21 July 2022. This Court, by
its order dated 21 July 2022 modified the order of the High Court and permitted the
appellant to terminate her pregnancy. This Court passed the following ad interim
order:
“22. In the above background, we pass the following ad
interim order:
(i) We request the Director of the All India Institute of
Medical Sciences, Delhi to constitute a Medical Board in
terms of the provisions of Section 3(2D) of the Act,
extracted in the earlier part of this order, during the course
of 22 July 2022; and
PART B
7
(ii) In the event that the Medical Board concludes that the
fetus can be aborted without danger to the life of the
petitioner, a team of doctors at the All India Institute of
Medical Sciences shall carry out the abortion in terms of
the request which has been made before the High Court
and which has been reiterated both in the Special Leave
Petition and in the course of the submissions before this
Court by counsel appearing on behalf of the petitioner.
Before doing so the wishes of the petitioner shall be
ascertained again and her written consent obtained after
due verification of identity.”
7. Counsel for the petitioner and the respondent stated that a Medical Board
was constituted at the All India Institute of Medical Sciences.
5 The Board noted
that the petitioner had consented to the termination of her pregnancy and the
procedure could be undertaken without danger to her life. The report submitted by
AIIMS indicates that the termination of the pregnancy was safely carried out.
8. As the case involves a substantial question of law, this Court has taken it up
for further consideration. The Writ Petition before the Delhi High Court shall stand
transferred to this Court. The significant issue which comes up for determination in
this appeal turns on the interpretation of Rule 3B of the MTP Rules.
B. Submissions
9. Dr. Amit Mishra, learned counsel appearing on behalf of the appellant made
the following submissions:
a. The appellant was an unmarried woman whose partner had refused
to marry her. She did not wish to continue the pregnancy and have
the child out of wedlock as she lacked the financial resources to do
so. She was not employed and her parents were farmers;
5 “AIIMS”
PART B
8
b. She was also not mentally prepared to raise a child by herself. If she
was compelled to do so, it would cause grave injury to her physical
and mental health. The appellant was not prepared to face the social
stigma surrounding unwed mothers; and
c. Section 3(2)(b) of the MTP Act and Rule 3B of the MTP Rules are
arbitrary and discriminatory because they exclude unmarried women
from their ambit. They discriminate against women on the ground of
marital status, in violation of Article 14 of the Constitution.
10. Ms. Aishwarya Bhati, learned senior counsel and Additional Solicitor
General has ably assisted this Court in the interpretation of Section 3(2) of the MTP
Act and Rule 3B(c) of the MTP Rules. She made the following submissions in
support of the argument that Rule 3B(c) extends to unmarried or single women
who are in long-term relationships:
a. The interpretation of legislation must be guided by the text and context
of a statute as well as the object it seeks to achieve. The Statement
of Objects and Reasons of a statute must also guide its interpretation;
b. Modern legislations ought to be read in view of the evolution of society
from the time of enactment. The literal construction of beneficial
legislations must be avoided, and they ought to be given a purposive
interpretation;
c. A subordinate legislation should give effect to the statute it is enacted
under. If two constructions are possible, the interpretation in
consonance with the statutory scheme ought to be adopted;
PART C
9
d. The term “change of marital status” in Rule 3B(c) ought to be
interpreted as “change in the status of a relationship” to include
unmarried or single women as well as women who are not divorced
but are separated or have been deserted;
e. “Live-in relationships” are equivalent to marital relationships because
in both types of relationships, the woman is entitled to maintenance.
Further, the children born out of such a relationship are vested with
the right of succession. Various national legislations, including the
MTP Act, do not make a distinction between married women and
unmarried or single women; and
f. Women enjoy the right to bodily integrity and autonomy, as well as
reproductive rights. They are entitled to exercise decisional
autonomy.
C. The Medical Termination of Pregnancy Act 1971 and the rules framed
thereunder
11. Before we embark upon a discussion on the law and its application, it must
be mentioned that we use the term “woman” in this judgment as including persons
other than cis-gender women who may require access to safe medical termination
of their pregnancies.
12. In India, termination of pregnancies is to be done strictly in terms of the MTP
Act. The preamble of the MTP Act states that it is an “Act to provide for the
termination of certain pregnancies by registered medical practitioners and for
matters connected therewith or incidental thereto.” The MTP Act specifies the
PART C
10
requirements to be fulfilled for terminating a pregnancy, including the persons who
are competent to perform the termination procedure, circumstances when abortion
is permissible, and places where the procedure may be performed.
13. Section 3 of the MTP Act, as amended by the Medical Termination of
Pregnancy (Amendment) Act 2021 (8 of 2021),6 provides for when pregnancies
may be terminated:
“Section 3 - When pregnancies may be terminated by
registered medical practitioners
(1) Notwithstanding anything contained in the Indian Penal
Code (45 of 1860), a registered medical practitioner shall
not be guilty of any offence under that code or under any
other law for the time being in force, if any pregnancy is
terminated by him in accordance with the provisions of this
Act.
2[(2) Subject to the provisions of sub-section (4), a
pregnancy may be terminated by a registered medical
practitioner,--
(a) where the length of the pregnancy does not exceed
twenty weeks, if such medical practitioner is, or
(b) where the length of the pregnancy exceeds twenty
weeks but does not exceed twenty-four weeks in case of
such category of woman as may be prescribed by rules
made under this Act, if not less than two registered medical
practitioners are, of the opinion, formed in good faith, that-
-
(i) the continuance of the pregnancy would involve a risk
to the life of the pregnant woman or of grave injury to her
physical or mental health; or
(ii) there is a substantial risk that if the child were born, it
would suffer from any serious physical or mental
abnormality.
Explanation 1.--For the purposes of clause (a), where any
pregnancy occurs as a result of failure of any device or
method used by any woman or her partner for the purpose
6 “MTP Amendment Act 2021”
PART C
11
of limiting the number of children or preventing pregnancy,
the anguish caused by such pregnancy may be presumed
to constitute a grave injury to the mental health of the
pregnant woman.
Explanation 2.--For the purposes of clauses (a) and (b),
where any pregnancy is alleged by the pregnant woman to
have been caused by rape, the anguish caused by the
pregnancy shall be presumed to constitute a grave injury
to the mental health of the pregnant woman.
(2A) The norms for the registered medical practitioner
whose opinion is required for termination of pregnancy at
different gestational age shall be such as may be
prescribed by rules made under this Act.
(2B) The provisions of sub-section (2) relating to the length
of the pregnancy shall not apply to the termination of
pregnancy by the medical practitioner where such
termination is necessitated by the diagnosis of any of the
substantial foetal abnormalities diagnosed by a Medical
Board.
(2C) Every State Government or Union territory, as the
case may be, shall, by notification in the Official Gazette,
constitute a Board to be called a Medical Board for the
purposes of this Act to exercise such powers and functions
as may be prescribed by rules made under this Act.
(2D) The Medical Board shall consist of the following,
namely:--
(a) a Gynaecologist;
(b) a Paediatrician;
(c) a Radiologist or Sonologist; and
(d) such other number of members as may be notified in
the Official Gazette by the State Government or Union
territory, as the case may be.
(3) In determining whether the continuance of a pregnancy
would involve such risk of injury to the health as is
mentioned in sub-section (2), account may be taken of the
pregnant woman’s actual or reasonably foreseeable
environment.
(4) (a) No pregnancy of a woman, who has not attained the
age of eighteen years, or, who having attained the age of
PART C
12
eighteen years, is a mentally ill person, shall be terminated
except with the consent in writing of her guardian.
(b) Save as otherwise provided in clause (a), no pregnancy
shall be terminated except with the consent of the pregnant
woman.”
14. Section 3 provides that registered medical practitioners7 shall not be guilty
of committing any offence under the Indian Penal Code 18608 or under any other
law for the time being in force if they terminate pregnancies in accordance with the
MTP Act. Sub-section (4) of Section 3 stipulates that a pregnancy shall not be
terminated except with the consent of the pregnant woman,9 and if the woman is
below 18 years of age or is mentally ill, with the consent of her guardian.10 Subject
to the requirement contained in sub-section (4) of Section 3, sub-section (2) of
Section 3 provides that a pregnancy may be terminated by a registered medical
practitioner subject to the conditions laid down therein. Pregnancies may be
terminated where they do not exceed twenty weeks11 and for certain categories of
women where they do not exceed twenty-four weeks.12 Section 3(2)(a) of the MTP
Act permits the termination of a pregnancy where the length of the pregnancy does
not exceed twenty weeks. Section 3(2)(b) of MTP Act permits the termination of a
pregnancy, where the length of the pregnancy is between twenty and twenty-four
weeks, of such categories of women “as may be prescribed by Rules.” These
pregnancies under Section 3 may be terminated if the medical practitioner in
7 “RMP”
8 “IPC”
9 Section 3(4)(b), MTP Act
10 Section 3(4)(a), MTP Act 11 Section 3(2)(a), MTP Act 12 Section 3(3)(b), MTP Act
PART C
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question (or in the case of pregnancies between twenty and twenty-four weeks, not
less than two registered medical practitioners) is, in good faith, of the opinion that:
a. The continuance of the pregnancy would put the pregnant woman’s life at
risk (Section 3(2)(i));
b. The continuance of the pregnancy would involve grave danger to the
pregnant woman’s physical health (Section 3(2)(i));
c. The continuance of the pregnancy would involve grave danger to the
pregnant woman’s mental health (Section 3(2)(i)); or
d. There is a substantial risk that the child would suffer from a serious
physical or mental abnormality, if it is born (Section 3(2)(ii)).
In determining whether the continuation of the pregnancy would involve grave
danger to the pregnant woman’s physical or mental health, her actual or
reasonably foreseeable environment may be taken into account.13 We are of the
opinion that significant reliance ought to be placed on each woman’s own
estimation of whether she is in a position to continue and carry to term her
pregnancy.
15. The explanations to Section 3(2) provide for two legal presumptions
indicating what constitutes a grave injury to the pregnant woman’s mental health.
Explanation 1 stipulates that pregnancies which occur due to the failure of a
contraceptive device or method used by a woman or her partner for limiting the
13 Section 3(3), MTP Act
PART C
14
number of children or preventing pregnancy shall be presumed to constitute a
grave injury to the mental health of the pregnant woman, if the pregnancy has not
exceeded twenty weeks. A similar legal presumption is provided for in Explanation
2, which stipulates that where a woman alleges that a pregnancy was caused as a
consequence of rape, the anguish caused by the pregnancy shall be presumed to
constitute a grave injury to her mental health. The legal presumption in Explanation
2 is applicable to all pregnancies which have not exceeded twenty-four weeks.
16. Pregnancies may be terminated only in a hospital established or maintained
by the government,14 or any place approved for the purposes of the MTP Act either
by the government or by a District Level Committee constituted in terms of Section
4(b). Further, the provisions of Section 4 and the provisions in Section 3(2) (which
relate to the length of the pregnancy and the requirement for the opinion of at least
two RMPs) shall not apply to the termination of pregnancies by an RMP, where the
RMP is, in good faith, of the opinion that the termination of the pregnancy is
immediately necessary to save the life of the pregnant woman.15 The MTP Act also
seeks to protect the privacy of a woman who has terminated a pregnancy – any
RMP who reveals the name or other particulars of such a woman shall be liable to
be sentenced to imprisonment which may extend to one year, or with fine, or both.16
The MTP Act vests the Central Government with the power to enact rules to carry
out its provisions17 and the State Governments with the power to enact regulations
in certain cases.18
14 Section 4(a), MTP Act 15 Section 5(1), MTP Act 16 Section 5A, MTP Act 17 Section 6, MTP Act 18 Section 7, MTP Act
PART C
15
17. In exercise of this power, the Central Government notified the MTP Rules.
The MTP Rules govern various aspects of the medical termination of pregnancies:
they include rules on the District Level Committee,19 the Medical Board,20 RMPs,21
and the place where a pregnancy may be terminated.22 Rule 3B, recently amended
by the Medical Termination of Pregnancy (Amendment) Rules 2021,23 is relevant
for the purposes of the present discussion. It governs the categories of women
under clause (b) of sub-section 2 of Section 3 who may have their pregnancy
terminated if the length of their pregnancy exceeds twenty weeks but does not
exceed twenty-four weeks. It states:
“3-B. Women eligible for termination of pregnancy up to
twenty-four weeks.—The following categories of women
shall be considered eligible for termination of pregnancy
under clause (b) of sub-section (2) Section 3 of the Act, for
a period of up to twenty-four weeks, namely—
(a) survivors of sexual assault or rape or incest;
(b) minors;
(c) change of marital status during the ongoing pregnancy
(widowhood and divorce);
(d) women with physical disabilities [major disability as per
criteria laid down under the Rights of Persons with
Disabilities Act, 2016 (49 of 2016)];
(e) mentally ill women including mental retardation;
(f) the foetal malformation that has substantial risk of being
incompatible with life or if the child is born it may suffer
from such physical or mental abnormalities to be seriously
handicapped; and
19 Rule 3, MTP Rules 20 Rule 3A, MTP Rules 21 Rules 4, 4A, MTP Rules 22 Rules 5, 6, 7, 8, MTP Rules 23 ”MTP Amendment Rules”
PART D
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(g) women with pregnancy in humanitarian settings or
disaster or emergency situations as may be declared by
the Government.”
D. Barriers to accessing safe and legal abortions
18. Despite the enactment of the MTP Act, a number of hurdles continue to
prevent full access to safe and legal abortions, pushing women to avail of
clandestine, unsafe abortions. These barriers include insufficient infrastructural
facilities, a lack of awareness, social stigma, and failure to ensure confidential care.
In some situations, unmarried women face particular barriers due to gender
stereotypes about women’s sexual autonomy outside marriage. These barriers are
a serious impediment and deter single women from seeking safe and legal
abortions. Such barriers may contribute to a delay in accessing abortion services
or a complete denial of such services, consequently negating women’s right to
reproductive autonomy.
i. RMPs’ fear of prosecution
19. It is not only the factors mentioned above which hinder access to safe
abortion but also a fear of prosecution under the country’s criminal laws. Under the
current legal framework, the MTP Act merely lays out exceptions to the provisions
criminalizing abortion in Sections 312 to 318 of the IPC. Section 3(1) of the MTP
Act begins with a non-obstante clause and stipulates that “Notwithstanding
anything contained in the Indian Penal Code (45 of 1860), a registered medical
practitioner shall not be guilty of any offence under that Code or under any other
law for the time being in force, if any pregnancy is terminated by him in accordance
with the provisions of this Act.” In terms of Section 3(1), the termination of a
PART D
17
pregnancy is a criminal offence under the IPC, unless it fulfils the conditions laid
down in the MTP Act, including who can terminate a pregnancy, the place where
termination can take place, and the specific conditions in accordance with which
such termination is permissible. Section 5(2) provides penalties when termination
of pregnancy is carried out by a person who is not an RMP. Section 5(3) provides
penalties when termination of pregnancy is carried out in a place other than that
mentioned in Section 4. RMPs and women seeking termination of pregnancy are
exempted from any legal action under the provisions of the IPC mentioned above
only when these conditions are fulfilled.
20. Presently, under the MTP Act, the opinion of an RMP (in accordance with
the restrictions and grounds laid down in the Act) is decisive. It is on the basis of
the opinion formed by RMP(s), either under Section 3 or under Section 5, that a
woman can terminate a pregnancy under the MTP Act. This makes the MTP Act a
provider-centric law. Since women’s right to access abortion is conditional on the
approval by an RMP, the denial of services by an RMP compels women to
approach courts or seek abortions in unsafe conditions.24 A fear of prosecution
under this complex labyrinth of laws, including linking of the MTP Act with the IPC,
acts as a major barrier to safe abortion access, by having a chilling effect on the
behaviour of RMPs. The chilling effect — historically associated with protection of
freedom of speech and expression under Article 1925 — has an impact on the
decision-making of medical professionals acting under the MTP Act and
24 Dipika Jain, Time to Rethink Criminalisation of Abortion? Towards a Gender Justice Approach, 12 NUJS Law
Review 2 (2019) 25 S. Khushboo v. Kanniammal, (2010) 5 SCC 600; Shreya Singhal v. Union of India, (2015) 5 SCC 1
PART D
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consequently impedes access to safe and legal abortions and the actualization of
women’s fundamental right to reproductive autonomy.
21. In Navtej Singh Johar v. Union of India26 a Constitution Bench of this Court
held that Section 377 had a chilling effect on the exercise of freedom of individuals,
which posed a grave danger to the unhindered fulfilment of one’s sexual
orientation, as an element of dignity and privacy. One of us, Dr. DY Chandrachud,
J., recognized the impact of the criminalization of homosexuality on the spread of
HIV/AIDS and how fear of prosecution and stigma created barriers to accessing
HIV prevention services, in his concurring opinion. This Court observed that:
“508. The silence and secrecy that accompanies
institutional discrimination may foster conditions which
encourage escalation of the incidence of HIV/AIDS. The
key population is stigmatized by health providers,
employers and other service providers. As a result, there
exist serious obstacles to effective HIV prevention and
treatment as discrimination and harassment can hinder
access to HIV and sexual health services and prevention
programmes.”
22. Although the actions of RMPs done in good faith under the MTP Act are
protected under Section 8, the spectre of criminalization casts a chilling effect on
them. The fear faced by RMPs of prosecution under the penal provisions often
leads to unnecessary delays. It is a common yet lamentable practice for RMPs to
insist on compliance with extra-legal conditions such as consent from the woman’s
family, documentary proofs, or judicial authorisation.27 If the woman fails to comply
with these additional requirements, RMPs frequently decline to provide their
services in conducting legal abortions.
26 (2018) 10 SCC 1 27 Centre for Reproductive Rights, “Reform to Address Women’s and Girl’s need for Abortion after 20 weeks” (2018)
PART D
19
23. These extra-legal requirements have no basis in law. As noted above, it is
only the woman’s consent (or her guardian’s consent if she is a minor or mentally
ill) which is material. RMPs must refrain from imposing extra-legal conditions on
women seeking to terminate their pregnancy in accordance with the law. They
need only ensure that the provisions of the MTP Act (along with the accompanying
rules and regulations) are complied with.
24. Before the MTP Amendment Act 2021 was enacted, the petitioners in a
number of cases before the High Courts also sought permission to terminate
pregnancy where the gestation was below twenty weeks.28 The unamended MTP
Act clearly stated that termination of pregnancy between twelve and twenty weeks
was permissible when two RMPs opined that the request for termination of
pregnancy meets either of the four grounds mentioned in Section 3(2).29 Thus,
there was no legal requirement to refer cases within the legal limit of twenty weeks
to the courts. These cases represent the barriers faced by women in accessing
safe and legal abortions, even when their decision to terminate their pregnancy is
permitted by the law.
25. This Court has recognized the disastrous effects of unnecessary delays and
lack of promptitude in the attitude of authorities when dealing with termination of
pregnancies. In Z v. State of Bihar,
30 this Court found that the state authorities,
including Patna Medical College and Hospital, had erred in failing to terminate the
28 See XYZ v. State of Maharashtra, 2018 SCC OnLine Bom 13751; Prabhavati Dattatray Jadhav v. State of
Maharashtra, 2021 SCC Online Bom 9339; ABC v. State of Maharashtra, (2018) 4 Mah LJ 374, 2018 SCC Online
Bom 144; A v. State of Maharashtra, 2022 SCC OnLine Bom 1361; D. Rajeswari v. State of Tamil Nadu, 1996 Cri
LJ 3795; X v. Govt. of NCT of Delhi, 2013 SCC OnLine Del 4929; Puja Kumari v. State of West Bengal, 2019 SCC
Online Cal 1277; Velunatchiyar v. Govt. of Tamil Nadu, 2021 SCC Online Mad 5047; M. Kala v. The Inspector of
Police, 2015 SCC OnLine Mad 7767
29 Section 3(2)(b), MTP Act 1971 30 (2018) 11 SCC 572
PART D
20
pregnancy before the passage of twenty weeks, despite the woman seeking an
abortion on the ground that she was a victim of rape. This Court also rebuked the
“negligence and carelessness” of the authorities in failing to terminate the
pregnancy as permitted by law. It noted that the proceedings in the High Court
were unduly delayed, leading to a situation where the pregnancy could not be
terminated without endangering the life of the woman in question. Compensation
was awarded to the petitioner (i.e., the pregnant woman).
ii. Social stigma surrounding unmarried women
26. An RMP’s decision to provide medical termination of a pregnancy is also
influenced by social stigma surrounding unmarried women and pre-marital sex,
gender stereotypes about women taking on the mantle of motherhood, and the role
of women in society.
27. Due to a widespread misconception that termination of pregnancies of
unmarried women is illegal, a woman and her partner may resort to availing of
abortions by unlicensed medical practitioners in facilities not adequately equipped
for such medical procedures, leading to a heightened risk of complications and
maternal mortality. In Surendra Chauhan v. State of Madhya Pradesh,
31 a twoJudge Bench of this Court upheld the Madhya Pradesh High Court’s order to
convict the accused under Section 314 read with Section 34 of the IPC for causing
a woman’s death by miscarriage. According to the facts of the case, the accused
was in an “illicit relation” with the deceased, an unmarried woman of twenty-four
years. The deceased woman had become pregnant as a result of this relationship.
31 (2000) 4 SCC 110
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Both of them had approached the clinic of a so-called doctor (who was named as
a co-accused) to terminate the pregnancy of around 3 months (approximately 12
weeks). The purported doctor was neither an RMP nor was his clinic approved by
the government, in terms of the requirements laid down in the MTP Act. During the
procedure for the termination of pregnancy, the woman passed away. This case is
illustrative of the dangers of unsafe abortions, undertaken due to the social stigma
surrounding pregnancies among unmarried women.
28. The social stigma that women face for engaging in pre-marital sexual
relations prevents them from realizing their right to reproductive health in a variety
of ways. They have insufficient or no access to knowledge about their own bodies
due to a lack of sexual health education, their access to contraceptives is limited,
and they are frequently unable to approach healthcare providers and consult them
with respect to their reproductive health. Consequently, unmarried and single
women face additional obstacles.
29. The social stigma surrounding single women who are pregnant is even
greater and they often lack support from their family or partner. This leads to the
proliferation of persons not qualified / certified to practice medicine. Such persons
offer the possibility of a discreet abortion and many women may feel compelled by
their circumstances to engage the services of such persons instead of opting for a
medically safe abortion. As illustrated in Surendra Chauhan (supra), this often
leads to disastrous consequences for the woman. Keeping in view these barriers
to accessing reproductive healthcare, we now turn to the interpretation of Section
3(2) of the MTP Act and Rule 3B of the MTP Rules.
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22
E. Analysis
i. The rule of purposive interpretation
30. The question that arises is whether Rule 3B includes unmarried women,
single women, or women without a partner under its ambit. The answer may be
discerned by imparting a purposive interpretation to Rule 3B.
31. The cardinal principle of the construction of statutes is to identify the
intention of the legislature and the true legal meaning of the enactment. The
intention of the legislature is derived by considering the meaning of the words used
in the statute, with a view to understanding the purpose or object of the enactment,
the mischief, and its corresponding remedy that the enactment is designed to
actualise.32 Ordinarily, the language used by the legislature is indicative of
legislative intent. In Kanailal Sur v. Paramnidhi Sadhu Khan,
33 Gajendragadkar,
J. (as the learned Chief Justice then was) opined that “the first and primary rule of
construction is that the intention of the Legislature must be found in the words used
by the Legislature itself.” But when the words are capable of bearing two or more
constructions, they should be construed in light of the object and purpose of the
enactment. The purposive construction of the provision must be “illumined by the
goal, though guided by the word.”34 Aharon Barak opines that in certain
circumstances this may indicate giving “an unusual and exceptional meaning” to
the language and words used.35 Before we engage in the exercise of purposive
32 JUSTICE G.P SINGH, G.P. SINGH: PRINCIPLES OF STATUTORY INTERPRETATION, (LexisNexis, 2016), at page 12; State
of Himachal Pradesh v. Kailash Chand Mahajan, 1992 Supp (2) SCC 351; Union of India v. Elphinstone Spinning
and Weaving Co. Ltd., (2001) 4 SCC 139
33 AIR 1957 SC 907 34 Kanta Goel v. B.P Pathak, 1977 SCR (3) 412 35 AHARON BARAK, PURPOSIVE INTERPRETATION IN LAW, (Princeton University Press, 2007), at page 306
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construction, we must caution that a court’s power to purposively interpret a
statutory text does not imply that a judge can substitute legislative intent with their
own individual notions. The alternative construction propounded by the judge must
be within the ambit of the statute and should help carry out the purpose and object
of the Act in question.
32. The interpretation of a subordinate legislation should be consistent with the
enabling Act.36 A subordinate legislation must be reasonable and in consonance
with the legislative policy. It should be interpreted in a meaningful manner, so as
to give effect to the purpose and object of the enabling Act. The interpretation which
is in consonance with the statutory scheme and gives effect to the statute must be
adopted.
33. In Principles of Statutory Interpretation by Justice G.P. Singh, it is stated
that a statute must be read in its context when attempting to interpret its purpose.37
Context includes reading the statute as a whole, referring to the previous state of
law, the general scope of the statute, surrounding circumstances and the mischief
that it was intended to remedy.38 The treatise explains that:
“For ascertaining the purpose of a statute one is not
restricted to the internal aid furnished by the statute itself,
although the text of the statute taken as a whole is the most
important material for ascertaining both the aspects of
‘intention’. Without intending to lay down a precise and
exhaustive list of external aids, Lord Somervell has stated:
“The mischief against which the statute is directed and,
perhaps though to an undefined extent the surrounding
36 Kedarnath Jute Manufacturing Co. v. Commercial Tax Officer, AIR 1966 SC 12; Union of India v. Tulsiram
Patel, (1986) 3 SCC 398; M.L. Kamra v. Chairman-cum-Managing Director, New India Assurance Co. Ltd. (1992)
1 SCR 220; St Johns Teachers Training Institute v. Regional Director National Council of Teacher
Education, (2003) 3 SCC 321 37 JUSTICE G.P SINGH, G.P. SINGH: PRINCIPLES OF STATUTORY INTERPRETATION, (LexisNexis, 2016), at page 35 38 Union of India v. Sankalchand Himatlal Sheth, (1977) 4 SCC 193, Reserve Bank of India v. Peerless General
Finance and Investment Co. Ltd., (1987) 1 SCC 424
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circumstances can be considered. Other statutes in pari
materia and the state of the law at the time are admissible.”
These external aids are also brought in by widening the
concept of ‘context’ “as including not only other enacting
provisions of the same statute, but its preamble, the
existing state of the law, other statutes in pari materia, and
the mischief which the statute was intended to remedy.” In
the words of Chinappa Reddy, J.: “Interpretation must
depend on the text and the context. They are the bases of
interpretation. One may well say if the text is the texture,
context is what gives colour. Neither can be ignored. Both
are important. That interpretation is best which makes the
textual interpretation match the contextual. A statute is
best interpreted when we know why it was enacted.”
34. The rule of purposive interpretation was first articulated in Heydon’s case39
in the following terms:
“for the sure and true interpretation of all statutes in
general (be they penal or beneficial, restrictive or enlarging
of the common law) four things are to be discerned and
considered:
1st. What was the common law before the making of the
Act.
2nd. What was the mischief and defect for which the
common law did not provide.
3rd. What remedy Parliament hath resolved and appointed
to cure the disease of the commonwealth.
And, 4th. The true reason of the remedy; and then the
office of all the Judges is always to make such construction
as shall suppress the mischief, and advance the remedy,
and to suppress subtle inventions and evasions for
continuance of the mischief, and pro privato commodo,
and to add force and life to the cure and remedy, according
to the true intent of the makers of the Act, pro bono publico”
39 (1584) 3 Co Rep 7a
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35. In Bengal Immunity Co. v. State of Bihar,
40 the Constitution Bench
applied the mischief rule in Heydon’s case in the construction of Article 286 of the
Constitution. In Kehar Singh v. State (Delhi Admn.),
41 a three-judge Bench of this
Court held:
“231. During the last several years, the “golden rule” has
been given a go-by. We now look for the “intention” of the
legislature or the “purpose” of the statute. First, we
examine the words of the statute. If the words are precise
and cover the situation in hand, we do not go further. We
expound those words in the natural and ordinary sense of
the words. But, if the words are ambiguous, uncertain or
any doubt arises as to the terms employed, we deem it as
our paramount duty to put upon the language of the
legislature rational meaning. We then examine every word,
every section and every provision. We examine the Act as
a whole. We examine the necessity which gave rise to the
Act. We look at the mischiefs which the legislature
intended to redress. We look at the whole situation and not
just one-to-one relation. We will not consider any provision
out of the framework of the statute. We will not view the
provisions as abstract principles separated from the
motive force behind. We will consider the provisions in the
circumstances to which they owe their origin. We will
consider the provisions to ensure coherence and
consistency within the law as a whole and to avoid
undesirable consequences.
233. For this purpose, we call in external and internal aids:
“External aids are: the Statement of Objects and Reasons
when the Bill was presented to Parliament, the reports of
the Committee, if any, preceding the Bill, legislative
history, other statutes in pari materia and legislation in
other States which pertain to the same subject matter,
persons, things or relations.
Internal aids are: Preamble, scheme, enacting parts of the
statutes, rules of languages and other provisions in the
statutes.”
40 (1955) 2 SCR 603 41 (1988) 3 SCC 609
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36. A catena of decisions emanating from this Court, including Kerala
Fishermen's Welfare Fund Board v. Fancy Food,
42 Bharat Singh v.
Management of New Delhi Tuberculosis Centre, New Delhi,
43 Bombay Anand
Bhavan Restaurant v. ESI Corpn.,44 Union of India v. Prabhakaran Vijaya
Kumar,
45 settle the proposition that progressive and beneficial legislation must be
interpreted in favour of the beneficiaries when it is possible to take two views of a
legal provision.
37. In S. Gopal Reddy v. State of A.P.,
46 while interpreting the Dowry
Prohibition Act 1961 (a beneficial legislation), this Court interpreted the meaning of
“dowry” by adopting the purposive interpretation approach:
“12. It is a well-known rule of interpretation of statutes that
the text and the context of the entire Act must be looked
into while interpreting any of the expressions used in a
statute. The courts must look to the object which the
statute seeks to achieve while interpreting any of the
provisions of the Act. A purposive approach for interpreting
the Act is necessary. We are unable to persuade ourselves
to agree with Mr Rao that it is only the property or valuable
security given at the time of marriage which would bring
the same within the definition of “dowry” punishable under
the Act, as such an interpretation would be defeating the
very object for which the Act was enacted. Keeping in view
the object of the Act, “demand of dowry” as a
consideration for a proposed marriage would also
come within the meaning of the expression dowry under
the Act. If we were to agree with Mr Rao that it is only the
“demand” made at or after marriage which is punishable
under Section 4 of the Act, some serious consequences,
which the legislature wanted to avoid, are bound to follow.
Take for example a case where the bridegroom or his
parents or other relatives make a “demand” of dowry
during marriage negotiations and later on after bringing the
bridal party to the bride's house find that the bride or her
42 (1995) 4 SCC 341 43 (1986) 2 SCC 614 44 (2009) 9 SCC 61 45 (2008) 9 SCC 527 46 (1996) 4 SCC 596
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parents or relatives have not met the earlier “demand” and
call off the marriage and leave the bride's house, should
they escape the punishment under the Act. The answer
has to be an emphatic “no”. It would be adding insult to
injury if we were to countenance that their action would not
attract the provisions of Section 4 of the Act. Such an
interpretation would frustrate the very object of the Act and
would also run contrary to the accepted principles relating
to the interpretation of statutes.”
(emphasis in original)
This principle has consistently been applied by this Court while construing
beneficial legislation. Most recently in KH Nazar v. Mathew K Jacob,
47
Nageshwar Rao, J. writing for a two-judge Bench observed:
“11. Provisions of a beneficial legislation have to be
construed with a purpose-oriented approach. The Act
should receive a liberal construction to promote its objects.
Also, literal construction of the provisions of a beneficial
legislation has to be avoided. It is the court's duty to
discern the intention of the legislature in making the law.
Once such an intention is ascertained, the statute should
receive a purposeful or functional interpretation.”
ii. Transcending the institution of marriage as a source of rights
38. While much of law’s benefits were (and indeed are) rooted in the institution
of marriage, the law in modern times is shedding the notion that marriage is a
precondition to the rights of individuals (alone or in relation to one another).
Changing social mores must be borne in mind when interpreting the provisions of
an enactment to further its object and purpose. Statutes are considered to be
“always speaking.”48
47 (2020) 14 SCC 126 48 Dharni Sugars and Chemicals Ltd v. Union of India, (2019) 5 SCC 480
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39. In Badshah v. Urmila Badshah Godse,
49 this Court reaffirmed that the law
should be interpreted in terms of the changing needs of the times and
circumstances. AK Sikri, J. speaking for a two-judge Bench of this Court, observed
that it is the duty of courts to bridge the gap between law and society by advancing
a purposive interpretation of statutes:
“16. The law regulates relationships between people. It
prescribes patterns of behaviour. It reflects the values of
society. The role of the court is to understand the purpose
of law in society and to help the law achieve its purpose.
But the law of a society is a living organism. It is based on
a given factual and social reality that is constantly
changing. Sometimes change in law precedes societal
change and is even intended to stimulate it. In most cases,
however, a change in law is the result of a change in social
reality. Indeed, when social reality changes, the law must
change too. Just as change in social reality is the law of
life, responsiveness to change in social reality is the life of
the law. It can be said that the history of law is the history
of adapting the law to society's changing needs. In both
constitutional and statutory interpretation, the court is
supposed to exercise discretion in determining the proper
relationship between the subjective and objective
purposes of the law.”
(emphasis supplied)
40. In Navtej Singh Johar (supra), this Court emphasized the transformative
nature of our Constitution. Transformative constitutionalism promotes and
engenders societal change by ensuring that every individual is capable of enjoying
the life and liberties guaranteed under the Constitution. This Court observed that
transformative constitutionalism places a duty on the judiciary to “ensure and
uphold the supremacy of the Constitution, while at the same time ensuring that a
sense of transformation is ushered constantly and endlessly in the society by
49 (2014) 1 SCC 188
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interpreting and enforcing the Constitution as well as other provisions of law in
consonance with the avowed object.”50
a. Modern or atypical forms of familial relationships
41. The law must remain cognizant of the fact that changes in society have
ushered in significant changes in family structures. In S. Khusboo v.
Kanniammal,
51 a three-judge Bench of this Court acknowledged that live-in
relationships and pre-marital sex should not be associated with the lens of
criminality. The Court observed:
“46. […] While there can be no doubt that in India,
marriage is an important social institution, we must also
keep our minds open to the fact that there are certain
individuals or groups who do not hold the same view. To
be sure, there are some indigenous groups within our
country wherein sexual relations outside the marital setting
are accepted as a normal occurrence. Even in the societal
mainstream, there are a significant number of people who
see nothing wrong in engaging in premarital sex. Notions
of social morality are inherently subjective and the criminal
law cannot be used as a means to unduly interfere with the
domain of personal autonomy. Morality and criminality are
not coextensive.”
42. In Deepika Singh v. Central Administrative Tribunal,
52 a two-Judge
Bench of this Court (of which one of us, Dr. DY Chandrachud, J. was a part)
recognized that family units may manifest in atypical ways:
“26. The predominant understanding of the concept of a
“family” both in the law and in society is that it consists of
a single, unchanging unit with a mother and a father (who
remain constant over time) and their children. This
assumption ignores both, the many circumstances which
may lead to a change in one's familial structure, and the
50 Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, at paragraph 122 51 (2010) 5 SCC 600 52 2022 SCC OnLine SC 1088
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fact that many families do not conform to this expectation
to begin with. Familial relationships may take the form of
domestic, unmarried partnerships or queer relationships.
A household may be a single parent household for any
number of reasons, including the death of a spouse,
separation, or divorce. Similarly, the guardians and
caretakers (who traditionally occupy the roles of the
“mother” and the “father”) of children may change with
remarriage, adoption, or fostering. These manifestations of
love and of families may not be typical but they are as real
as their traditional counterparts. Such atypical
manifestations of the family unit are equally deserving not
only of protection under law but also of the benefits
available under social welfare legislation. The black letter
of the law must not be relied upon to disadvantage families
which are different from traditional ones. The same
undoubtedly holds true for women who take on the role of
motherhood in ways that may not find a place in the
popular imagination.”
43. Societal reality, as observed by this Court in Deepika Singh (supra),
indicates the need to legally recognize non-traditional manifestations of familial
relationships. Such legal recognition is necessary to enable individuals in nontraditional family structures to avail of the benefits under beneficial legislation,
including the MTP Act.
b. The equal status of married and unmarried or single women
44. Over the years, the Parliament has enacted legislation bringing about a
congruence between the rights of married and unmarried women. The Maternity
Benefit Act 1961 was enacted to provide maternity benefits to women employed in
any establishment. In terms of Section 5 of the Maternity Benefit Act 1961, the
payment of maternity benefits is extended to all women (including unmarried
women) by the use of the phrase “every woman.”
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45. The Hindu Succession Act 1956 was enacted to codify the law relating to
intestate succession among Hindus. Section 6 of the Hindu Succession Act 1956
pertains to devolution of interest in coparcenary property. In terms of this provision
a daughter, irrespective of her marital status, is a coparcener in her own right in
the same manner as the son by virtue of the Hindu Succession (Amendment) Act
2005.
46. Section 8 of the Hindu Adoptions and Maintenance Act 1956 stipulates that
any female Hindu regardless of her marital status has the capacity to take a son or
daughter in adoption. Sections 7 and 8 of the Guardian and Wards Act 1890 allows
for persons to apply for an order of guardianship without making any distinction
between men or women, married or unmarried.
47. Through the above enactments, the law has emphasized that unmarried
women have the same rights as married women in terms of adoption, succession,
and maternity benefits. Importantly, these legislations also signify that both married
and unmarried women have equal decisional autonomy to make significant choices
regarding their own welfare.
48. In the evolution of the law towards a gender equal society, the interpretation
of the MTP Act and MTP Rules must consider the social realities of today and not
be restricted by societal norms of an age which has passed into the archives of
history. As society changes and evolves, so must our mores and conventions. A
changed social context demands a readjustment of our laws. Law must not remain
static and its interpretation should keep in mind the changing social context and
advance the cause of social justice.
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iii. The object and purpose of the MTP Act
49. The purpose or object of an enactment is the mischief at which the
enactment is directed and the remedy which the lawmakers have devised to
address the mischief. A number of decisions, such as Chiranjit Lal Chowdhury
v. Union of India,
53 A. Thangal Kunju Musaliar v. M. Venkatachalam Potti,
54
State of Himachal Pradesh v. Kailash Chand Mahajan,
55 and National
Insurance Co. Ltd. v. Swaran Singh56 lay down that it is desirable to look into the
legislative history and the Statement of Objects and Reasons of an enactment to
appreciate the background and state of affairs leading up to the legislation and the
circumstances which were prevalent at the time the statute was enacted.
50. Prior to the enactment of the MTP Act, the medical termination of pregnancy
was governed by the IPC. Chapter XVI of the IPC contains a segment titled “Of
the causing of miscarriage, of injuries to unborn children, of the exposure of infants,
and of the concealment of births”, with Sections 312 to 318 forming a part of this
segment. Section 312 criminalizes abortion, making any person (including the
pregnant woman herself) liable for causing the miscarriage of a woman with an
unborn foetus, except where the procedure is done in good faith in order to save
the woman’s life. Section 313 stipulates a penalty of imprisonment for life or
imprisonment for a term which may extend to ten years when the offence of
‘causing miscarriage’ is committed without the consent of the woman. Section 312
to Section 316 of the IPC failed to make a distinction between wanted and
53 1950 SCR 869 54 1950 SCR 869 55 1992 Supp (2) SCC 351 56 (2004) 3 SCC 297
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unwanted pregnancies, thereby making it extremely onerous for women to access
safe abortions. Before 1971, the criminalization of abortion under the IPC often
compelled women to seek unsafe, unhygienic and unregulated abortions, leading
to an increase in maternal morbidity and mortality.
51. In this background, the Medical Termination of Pregnancy Bill57 was drafted
and introduced in the Rajya Sabha on 17 November 1969. On 2 August 1971, the
MTP Bill was introduced in the Lok Sabha with the intent to “liberalise some of the
restrictions under section 312 of the IPC.”58 The MTP Act was enacted by
Parliament as a “health” measure, “humanitarian” measure and “eugenic”
measure. The relevant portion of the Statement of Objects and Reasons of the
MTP Act is extracted below:
“1. The provisions regarding the termination of pregnancy
in the Penal Code, 1860 which were enacted about a
century ago were drawn up in keeping with the then British
Law on the subject. Abortion was made a crime for which
the mother as well as the abortionist could be punished
except where it had to be induced in order to save the life
of the mother. It has been stated that this very strict law
has been observed in the breach in a very large number of
cases all over the country. Furthermore, most of these
mothers are married women, and are under no particular
necessity to conceal their pregnancy.
2. In recent years, when health services have expanded
and hospitals are availed of to the fullest extent by all
classes of society, doctors have often been confronted
with gravely ill or dying pregnant women whose pregnant
uterus have been tampered with a view to causing an
abortion and consequently suffered very severely.
3. There is thus avoidable wastage of the mother's health,
strength and, sometimes, life. The proposed measure
which seeks to liberalise certain existing provisions
relating to termination of pregnancy has been conceived
57 “MTP Bill” 58 Lok Sabha Debates, Fifth Series, Vol. VII, No. 53 (2 August 1972), at page 159
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(1) as a health measure—when there is danger to the life
or risk to physical or mental health of the woman; (2) on
humanitarian grounds-such as when pregnancy arises
from a sex crime like rape or intercourse with a lunatic
woman, etc.; and (3) eugenic grounds—where there is
substantial risk that the child, if born, would suffer from
deformities and diseases.”
The whole tenor of the MTP Act is to provide access to safe and legal medical
abortions to women. The MTP Act is primarily a beneficial legislation, meant to
enable women to access services of medical termination of pregnancies provided
by an RMP. Being a beneficial legislation, the provisions of the MTP Rules and the
MTP Act must be imbued with a purposive construction. The interpretation
accorded to the provisions of the MTP Act and the MTP Rules must be in
consonance with the legislative purpose.
52. The MTP Amendment Act 2021 intended to extend the benefits of the statute
to all women, including single and unmarried women. The MTP Amendment Act
2021, which came into force from 24 September 2021, introduced a major change
in Section 3 of the MTP Act by extending the upper limit for permissible termination
of pregnancy from twenty weeks to twenty-four weeks. In terms of the unamended
MTP Act, a pregnancy could only be terminated under Section 3(2) if it did not
exceed twenty weeks. The MTP Amendment Act 2021 extended the upper limit
and allowed termination of pregnancy up to twenty-four weeks for specific
categories of women based on the opinion of two RMPs.
53. The MTP Amendment Act 2021 also extended the benefit of the legal
presumption of a grave injury to the mental health of a woman on account of the
failure of contraception, to all women and not just married women. In the
unamended MTP Act, Explanation II provided that the anguish caused by a
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pregnancy resulting from a failure of any device or method used by any “married
woman or her husband” for the purpose of limiting the number of children may
be presumed to constitute a grave injury to the mental health of the woman. After
the MTP Amendment Act 2021, Explanation I provides that the anguish caused by
a pregnancy (up to twenty weeks) arising from a failure of a contraceptive device
used by “any woman or her partner” either for limiting the number of children or
for preventing pregnancy can be presumed to constitute a grave injury to a
woman’s mental health. By eliminating the word “married woman or her husband”
from the scheme of the MTP Act, the legislature intended to clarify the scope of
Section 3 and bring pregnancies which occur outside the institution of marriage
within the protective umbrella of the law.
54. The Statement of Objects and Reasons of the Amendment Act locates the
purpose within the framework of reproductive rights:
“With the passage of time and advancement of medical
technology for safe abortion, there is a scope for
increasing upper gestational limit for terminating
pregnancies especially for vulnerable women and for
pregnancies with substantial foetal anomalies detected
late in pregnancy. Further, there is also a need for
increasing access of women to legal and safe abortion
service in order to reduce maternal mortality and morbidity
caused by unsafe abortion and its complications.
Considering the need and demand for increased
gestational limit under certain specified conditions
and to ensure safety and well-being of women, it is
proposed to amend the said Act. The proposed Bill is
a step towards safety and well-being of women and
will enlarge the ambit and access of women to safe
and legal abortion without compromising on safety
and quality of care. The proposal will also ensure dignity,
autonomy, confidentiality and justice for women who need
to terminate pregnancy.”
(emphasis supplied)
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55. The Statement of Objects and Reasons indicates that the MTP Amendment
Act 2021 is primarily concerned with increasing access to safe and legal abortions
to reduce maternal mortality and morbidity. The increase in the upper gestational
limit for terminating pregnancies under “certain specified conditions” was
considered necessary to fulfil the goal of ensuring “dignity, autonomy,
confidentiality and justice for women who need to terminate pregnancy.”
56. The unamended MTP Act of 1971 was largely concerned with “married
women”, as evident from paragraph 1 of its Statement of Objects and Reasons,
which stated that most of the women seeking abortions were married, and thus
“under no particular necessity to conceal their pregnancy.” Significantly, the 2021
Statement of Objects and Reasons does not make a distinction between married
and unmarried women. Rather, all women are entitled to the benefit of safe and
legal abortions.
57. This is consistent with the Reply of the Ministry of Health & Family Welfare
to the Report on ‘Women’s Healthcare: Policy Options’ by the Committee on
Empowerment of Women (2020-2021). The Ministry responded that “to increase
the access of safe abortion services to all women, the provision of abortion services
is proposed for all women irrespective of their marital status.”59 The Committee on
Empowerment of Women had recommended a “raise [in] the permissible period of
abortions to 24 weeks” and the deletion of the word “married” in the legislation, so
59 Committee of Empowerment of Women (2020-2021), “Fourth Report (Seventeenth Lok Sabha) on the action
taken by the Government on the recommendations contained in the Eleventh Report (Sixteenth Lok Sabha) on
Women’s Healthcare: Policy Options” (2021), at page 33
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that “anyone can get an abortion without having to depend on sham clinics as a
last recourse.”
58. The legislative history of the MTP Act, including the speech of the Minister
of Health and Family Welfare while introducing the Amendment Bill, sheds light on
the social context which necessitated the MTP Amendment Act 2021. Dr. Harsh
Vardhan (who was, at the time, the Union Minister for Health and Family Welfare)
stated that the purpose of extending the upper gestational limit was to strengthen
access to comprehensive abortion care,60 especially for special categories of
women.61 Elaborating on the prevailing circumstances, the Union Minister for
Health and Family Welfare stated that “26 petitions have been filed in the Supreme
Court and over hundred petitions have been filed before High Courts”, seeking
permission for aborting pregnancies at a gestational age beyond the twenty week
limit. In view of this, the “long-awaited amendment” was introduced.62 Responding
to the objections raised on the inclusion of a woman and her partner instead of a
married woman and her husband, the Minister opined that in keeping abreast with
the evolution of social norms, the failure of contraceptive must encompass access
to abortion facilities to all women.63 Explaining the object behind this amendment,
the Minister observed that taking into consideration an ever-changing society,
rights of single women, widows, and sex workers must be considered.64 After the
amendment, the scheme of the MTP Act does not make a distinction between
married and unmarried women for the purpose of medical termination of
60 Lok Sabha Debates, Seventeenth Series, Vol. VIII, Third Session, 2020/1041, No. 19 (17 March 2020), at page
271 (“Lok Sabha Debates, Seventeenth Series”) 61 Lok Sabha Debates, Seventeenth Series, at page 336 62 Lok Sabha Debates, Seventeenth Series, at page 272 63 Lok Sabha Debates, Seventeenth Series, at page 337 64 Lok Sabha Debates, Seventeenth Series, at page 337
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pregnancies. The Amendment Bill was termed as a “progressive legislation”
introduced to uphold women’s right to live with dignity.
65
59. A statutory text concerned with a significant aspect of the right to life and
enhancing access to reproductive rights should be given the widest construction.
The legislative history of the MTP Amendment Act 2021 provides insight into the
hardship at which the amendment aimed. During the Parliamentary debates
concerning the MTP Amendment Act 2021, statistics were shared on the
connection between unsafe abortions and maternal deaths. The continuing crisis
of unsafe abortions looms large in the parliamentary history of the MTP Act since
1971. Unsafe abortions are a leading but preventable cause of maternal mortality
and morbidity. However, despite the enactment of the MTP Act in 1971, unsafe
abortions continue to be the third leading cause of maternal mortality, and close to
eight women in India die each day due to causes related to unsafe abortions.66
Another study published in the BMJ Global Health points out to the grim statistics
of unsafe abortions in India: between the years 2007 and 2011, an estimate of 67%
of abortions carried out were classified as unsafe.67 It further observes that
disadvantaged women in India, including women from a lower socio-economic
status, are at a higher risk of undergoing unsafe abortions. By denying access to
safe abortion services, restrictive abortion laws have been shown to increase the
incident of unsafe abortions.68 In view of the serious social malady due to illegal
65 Lok Sabha Debates, Seventeenth Series, at page 274 66 United Nations Population Fund, “Seeing the Unseen: The case for action in the neglected crisis of unintended
pregnancy, State of World Populations” (2022) 67 Ryo Yokoe, Choudhury SS, et al., Unsafe abortion and abortion-related death among 1.8 million women in India,
4(3) BMJ Global Health (2019) 68 Jonathan Baerak, et al., Unintended pregnancy and abortion by income, region, and the legal status of abortion:
estimates from a comprehensive model for 1990–2019, 8(9) Lancet Global Health (2020)
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and unsafe abortions, the MTP Amendment Act 2021 intended to improve the
availability and quality of legal abortion care for women by liberalizing certain
restrictive features of the unamended MTP Act and by increasing the legal limit of
the gestational period within which abortions could be conducted from twenty to
twenty-four weeks.
iv. The MTP Act as an aid of interpretation: Understanding “injury to
mental health”
60. When interpreting a sub-clause or part of a statutory provision, the entire
section should be read together with different sub-clauses being a part of an
integral whole.69 In terms of Section 3(2)(b) of the MTP Act, not less than two RMPs
must, in good faith, be of the opinion that the continuation of the pregnancy of any
woman who falls within the ambit of Rule 3B would involve (i) a risk to her life; (ii)
grave injury to her physical health; or (iii) grave injury to her mental health.
Alternatively, not less than two RMPs must, in good faith, be of the opinion that
there is a substantial risk of the child suffering from a serious physical or mental
abnormality, if born. Women who seek to avail of the benefit under Rule 3B of the
MTP Rules continue to be subject to the requirements of Section 3(2) of the MTP
Act.
61. One of the grounds on the basis of which termination of pregnancy may be
carried out is when the continuance of a pregnancy would involve risk of injury to
the mental health of the woman. The expression “grave injury to her physical or
69 Balasinor Nagrik Co-operative Bank Ltd. v. Bababhai Shankerlal Pandya, (1987) 1 SCC 606; Madanlal
Fakirchand v. Shree Changdeo Sugar Mills Ltd., 1962 Supp (3) SCR 973
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mental health” used in Section 3(2) is used in an overarching and all-encompassing
sense. The two explanations appended to Section 3(2) provide the circumstances
under which the anguish caused by a pregnancy may be presumed to constitute a
grave injury to the mental health of a woman.
62. Courts in the country have permitted women to terminate their pregnancies
where the length of the pregnancy exceeded twenty weeks (the outer limit for the
termination of the pregnancy in the unamended MTP Act) by expansively
interpreting Section 5, which permitted RMPs to terminate pregnancies beyond the
twenty week limit when it was necessary to save the life of the woman. In X v.
Union of India,70 Mamta Verma v. Union of India,
71 Meera Santosh Pal v. Union
of India,
72 Sarmishtha Chakrabortty v. Union of India,
73 this Court permitted the
termination of post twenty week pregnancies after taking into account the risk of
grave injury to the mental health of a pregnant woman by carrying the pregnancy
to term.
63. The grounds for approaching courts differ and include various reasons such
as a change in the circumstances of a woman’s environment during an ongoing
pregnancy, including risk to life,74 risk to mental health,75 discovery of foetal
anomalies,76 late discovery of pregnancy in case of minors and women with
70 (2017) 3 SCC 458 71 (2018) 14 SCC 289 72 (2017) 3 SCC 462 73 (2018) 13 SCC 339 74 A v. Union of India, (2018) 14 SCC 75; X v. Union of India, (2017) 3 SCC 458; Meera Santosh Pal v. Union of
India, (2017) 3 SCC 462; Tapasya Umesh Pisal v. Union of India, (2018) 12 SCC 57; Mamta Verma v. Union of
India, (2018) 14 SCC 289 75 X v. Union of India, (2017) 3 SCC 458; Meera Santosh Pal v. Union of India, (2017) 3 SCC 462; Sarmishtha
Chakrabortty v. Union of India, (2018) 13 SCC 339; Mamta Verma v. Union of India, (2018) 14 SCC 289; Z v. State
of Bihar, (2018) 11 SCC 572 76 A v. Union of India, (2018) 14 SCC 75; Sarmishtha Chakrabortty v. Union of India, (2018) 13 SCC 339; Tapasya
Umesh Pisal v. Union of India, (2018) 12 SCC 57; Mamta Verma v. Union of India, (2018) 14 SCC 289
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disabilities,77 and pregnancies resulting from sexual assault or rape.78 These are
illustrative situations thrown up by cases which travel to the court. Although the
rulings in these cases recognized grave physical and mental health harms and the
violation of the rights of women caused by the denial of the option to terminate
unwanted pregnancies, the relief provided to the individual petitioner significantly
varied.
64. The expression “mental health” has a wide connotation and means much
more than the absence of a mental impairment or a mental illness. The World
Health Organization defines mental health as a state of “mental well-being that
enables people to cope with the stresses of life, realize their abilities, learn well
and work well, and contribute to their community.”79 The determination of the status
of one’s mental health is located in one’s self and experiences within one’s
environment and social context. Our understanding of the term mental health
cannot be confined to medical terms or medical language, but should be
understood in common parlance. The MTP Act itself recognizes the need to look
at the surrounding environment of the woman when interpreting injury to her health.
Section 3(3) states that while interpreting “grave injury to her physical or mental
health”, account may be taken of the pregnant woman’s actual or reasonably
foreseeable environment. The consideration of a woman’s “actual or reasonably
foreseeable environment” becomes pertinent, especially when determining the risk
of injury to the mental health of a woman.
77 X v. Union of India, (2020) 19 SCC 806 78 Z v. State of Bihar, (2018) 11 SCC 572; X v. Union of India, (2020) 19 SCC 806 79 World Health Organization, “Promoting mental health: concepts, emerging evidence, practice (Summary Report)”
(2004)
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65. There have been numerous decisions of the High Courts where a purposive
interpretation is given to the phrase mental health as used in the MTP Act. In High
Court on its Own Motion v. State of Maharashtra,
80 the High Court of Bombay
correctly held that compelling a woman to continue any unwanted pregnancy
violates a woman’s bodily integrity, aggravates her mental trauma and has a
deleterious effect on the mental health of the woman because of the immediate
social, financial and other consequences flowing from the pregnancy.
66. In Sidra Mehboob Shaikh v. State of Maharashtra,
81 the High Court of
Bombay permitted the petitioner to undergo medical termination of her pregnancy
on the ground that compelling her to continue with her unwanted pregnancy would
be oppressive, and would likely cause a grave injury to her mental health. The
petitioner, a victim of domestic violence, had approached the court to allow her to
undergo an abortion as she pleaded that she did not want to raise a child in the
absence of financial and emotional support from her husband; and raising a child
on her own would be burdensome. The High Court observed that “mental state of
a person is a continuum with good mental health being at one end and diagnosable
mental illness at the opposite end. Therefore, mental health and mental illness,
although sound similar, are not the same.”
82
67. We note the correct interpretation adopted in two other judgments from the
Bombay High Court, where the Court permitted unmarried petitioners to abort, after
purposively construing the effects of carrying an unwanted pregnancy on the
80 2016 SCC OnLine Bom 8426 81 2021 SCC Online Bom 1839 82 2021 SCC Online Bom 1839, at paragraph 22
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mental health of a woman. In XYZ v. State of Maharashtra,
83 an unmarried
petitioner aged about 18 years was allowed to terminate her pregnancy in the 26th
week after considering her socio-economic condition, and the impact of the
continuation of pregnancy on her mental health. In Siddhi Vishwanath Shelar v.
State of Maharashtra,
84 a twenty-three year old petitioner contended that she was
not mentally ready to be an unwed mother and sought the termination of her
pregnancy of approximately twenty-three weeks. The Petitioner was engaged in a
consensual relationship but had since parted ways from her partner, and thus
wanted to terminate the unwanted pregnancy. While permitting the abortion, the
High Court of Bombay observed that insisting upon continuance of pregnancy
would involve a grave injury to the petitioner’s health. The High Court took note of
the woman’s submissions regarding her actual and foreseeable environment.
v. Construing Rule 3B
68. By framing Rule 3B, the legislature intended to solve the mischief, so to
speak, of women being unable to access abortions when their lives underwent
significant changes impacting their physical and mental health, and their decision
to have a child was impacted after the length of the pregnancy exceeded twenty
weeks. The Minutes of the Meeting of the Expert Committee held on 22 June 2021
for deliberating upon and drafting the MTP Rules dealt with, inter alia, category of
women under Rule 3B. The members of the Expert Committee suggested different
categories of women such as “survivors of sexual violence/ rape; mentally
challenged women, minors, women with disabilities; foetal anomalies; conception
83 Judgment dated 6 October 2021 in WP(L) 21977 of 2021 (Bombay High Court) 84 2020 SCC OnLine Bom 11672
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in lactational amenorrhea period; single women (such as unwed women (major),
divorced and widowed, separated women); women who are facing difficulties in
contexts of humanitarian setting/ emergencies and/or natural disasters; women
victims of domestic violence/ gender-based violence etc.” The members of the
Expert Committee urged the inclusion of women in Rule 3B, who often delay
revealing the pregnancy or making decisions as to its continuance, for various
reasons.
69. The common thread running through each category of women mentioned in
Rule 3B is that the woman is in a unique and often difficult circumstance, with
respect to her physical, mental, social, or financial state. All the different categories
in Rule 3B represent women who seek an abortion after twenty weeks either due
to a delay in recognizing pregnancy, or some other change in their environment
impacting their decision on whether the pregnancy is wanted or unwanted. The law
recognizes the myriad ways in which a pregnancy may cause distress in such
situations and cause grave injury to her physical and mental health. It gives such
women latitude in seeking out the termination of an unwelcome pregnancy by
extending the gestational period up to which the termination is legally permissible.
70. Rule 3B(a) is based on an acknowledgement of the reality that survivors of
sexual assault, rape, or incest may face immense stigma if and when they share
the fact of their assault with others, including family members. It is no secret that a
culture of shame surrounds sexual violence in India. Survivors are often hesitant
to speak about the violence inflicted upon them. This is doubly the case with victims
of incestuous sexual assault or rape, whose close relatives abuse their power and
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authority over the woman and other family members oftentimes being unwilling to
believe that the perpetrator (that is to say, their relative) is guilty of sexual violence.
Many survivors, including minors, may not even be aware that pregnancy is a
possible consequence of rape. Hence, the delay in revealing the fact that a man
has raped them may lead to a delay in discovering the pregnancy. Alternatively,
the woman in question may be unable to access medical facilities in a timely
fashion and may therefore find herself unable to terminate the pregnancy before
the completion of twenty weeks.
71. 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. A woman may become
pregnant as a result of non-consensual sexual intercourse performed upon her by
her husband. We would be remiss in not recognizing that intimate partner violence
is a reality and can take the form of rape. The misconception that strangers are
exclusively or almost exclusively responsible for sex- and gender-based violence
is a deeply regrettable one. Sex- and gender-based violence (in all its forms) within
the context of the family has long formed a part of the lived experiences of scores
of women.
72. Existing Indian laws recognize various forms of familial violence – the PreConception and Pre-Natal Diagnostic Techniques Act 1994 criminalises the
communication of the sex of the foetus to the pregnant woman or her relatives.
Section 498A of the IPC criminalises physical, mental, and emotional abuse. The
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Dowry Prohibition Act 1961 criminalises the giving and taking of dowry (a form of
economic and social violence). Physical abuse or sexual abuse by family members
and female infanticide are also criminalized under the IPC. Marital assault merely
forms a part of a long list of deeds that amount to violence in the context of the
family.
73. It is not inconceivable that married women become pregnant as a result of
their husbands having “raped” them. The nature of sexual violence and the
contours of consent do not undergo a transformation when one decides to marry.
The institution of marriage does not influence the answer to the question of whether
a woman has consented to sexual relations. If the woman is in an abusive
relationship, she may face great difficulty in accessing medical resources or
consulting doctors.
74. It is only by a legal fiction that Exception 2 to Section 375 of the IPC removes
marital rape from the ambit of rape, as defined in Section 375. Understanding
“rape” under the MTP Act and the rules framed thereunder as including marital
rape does not have the effect of striking down Exception 2 to Section 375 of the
IPC or changing the contours of the offence of rape as defined in the IPC. Since
the challenge to Exception 2 to Section 375 of the IPC is pending consideration
before a different Bench of this Court, we would leave the constitutional validity to
be decided in that or any other appropriate proceeding.
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75. Notwithstanding Exception 2 to Section 375 of the IPC,85 the meaning of the
words “sexual assault” or “rape” in Rule 3B(a) includes a husband’s act of sexual
assault or rape committed on his wife. The meaning of rape must therefore be
understood as including marital rape, solely for the purposes of the MTP Act and
any rules and regulations framed thereunder. Any other interpretation would have
the effect of compelling a woman to give birth to and raise a child with a partner
who inflicts mental and physical harm upon her.
76. In order to avail the benefit of Rule 3B(a), the woman need not necessarily
seek recourse to formal legal proceedings to prove the factum of sexual assault,
rape or incest. Neither Explanation 2 to Section 3(2) nor Rule 3B(a) require that
the offender be convicted under the IPC or any other criminal law for the time being
in force before the pregnant woman can access an abortion. Further, there is no
requirement that an FIR must be registered or the allegation of rape must be proved
in a court of law or some other forum before it can be considered true for the
purposes of the MTP Act. Such a requirement would be contrary to the object and
purpose of the MTP Act. In fact, Explanation 2 triggers the legal presumption as to
mental trauma “where any pregnancy is alleged by the pregnant woman to have
been caused by rape.”
77. Rule 3B(b) includes minors within the category of women who may terminate
their pregnancy up to twenty-four weeks. They have been included in the list of
special categories of women because adolescents who engage in consensual
85 See Exception 2 to Section 375, IPC – Sexual intercourse by a man with his own wife, the wife not being under
fifteen years of age, is not rape. It is to be noted that in Independent Thought v. Union of India (2017) 10 SCC 800,
this Court read Exception 2 to Section 375 down such that the words “eighteen years” replaced the words “fifteen
years” thereby raising the age of consent to eighteen years, notwithstanding the marital status of the woman.
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sexual activity may be unaware that sexual intercourse often results in pregnancy
or be unable to identify the signs of a pregnancy. The Protection of Children from
Sexual Offences Act 201286 is gender neutral and criminalizes sexual activity by
those below the age of eighteen. Under the POCSO Act, factual consent in a
relationship between minors is immaterial. The proscription contained in the
POCSO Act does not – in actuality – prevent adolescents from engaging in
consensual sexual activity. We cannot disregard the truth that such activity
continues to take place and sometimes leads to consequences such as pregnancy.
The legislature was no doubt alive to this fact when it included adolescents within
the ambit of Rule 3B of the MTP Rules.
78. The absence of sexual health education in the country means that most
adolescents are unaware of how the reproductive system functions as well as how
contraceptive devices and methods may be deployed to prevent pregnancies. The
taboos surrounding pre-marital sex prevent young adults from attempting to access
contraceptives. The same taboos mean that young girls who have discovered the
fact that they are pregnant are hesitant to reveal this to their parents or guardians,
who play a crucial role in accessing medical assistance and intervention.
79. Furthermore, Section 19(1) of the POCSO Act requires that any person,
including a child, who has knowledge of the commission of an offence punishable
under the POCSO Act, or an apprehension that such an offence may be
committed, is mandatorily required to provide information to the Special Juvenile
Police Unit or the local police. Section 19(2) of the POCSO Act stipulates that every
86 “POCSO Act”
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such report under Section 19(1) shall be ascribed an entry number and recorded
in writing, read over to the informant, and entered in a book to be kept by the police
unit. Failure to report, as mandated by Section 19, is a punishable offence under
Section 21 of the POCSO Act. Neither the POCSO Act nor the Protection of
Children from Sexual Offences Rules 2012 prescribe a template or a format for the
report mandated under Section 19(1).
80. When a minor approaches an RMP for a medical termination of pregnancy
arising out of a consensual sexual activity, an RMP is obliged under Section 19(1)
of the POCSO Act to provide information pertaining to the offence committed, to
the concerned authorities. An adolescent and her guardian may be wary of the
mandatory reporting requirement as they may not want to entangle themselves
with the legal process. Minors and their guardians are likely faced with two options
– one, approach an RMP and possibly be involved in criminal proceedings under
the POCSO Act, or two, approach an unqualified doctor for a medical termination
of the pregnancy. If there is an insistence on the disclosure of the name of the
minor in the report under Section 19(1) of POCSO, minors may be less likely to
seek out RMPs for safe termination of their pregnancies under the MTP Act.
81. To ensure that the benefit of Rule 3B(b) is extended to all women under 18
years of age who engage in consensual sexual activity, it is necessary to
harmoniously read both the POCSO Act and the MTP Act. For the limited purposes
of providing medical termination of pregnancy in terms of the MTP Act, we clarify
that the RMP, only on request of the minor and the guardian of the minor, need not
disclose the identity and other personal details of the minor in the information
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provided under Section 19(1) of the POCSO Act. The RMP who has provided
information under Section 19(1) of the POCSO Act (in reference to a minor seeking
medical termination of a pregnancy under the MTP Act) is also exempt from
disclosing the minor’s identity in any criminal proceedings which may follow from
the RMP’s report under Section 19(1) of the POCSO Act. Such an interpretation
would prevent any conflict between the statutory obligation of the RMP to
mandatorily report the offence under the POCSO Act and the rights of privacy and
reproductive autonomy of the minor under Article 21 of the Constitution. It could
not possibly be the legislature’s intent to deprive minors of safe abortions.
82. As opposed to consensual sexual activity among adolescents, minors are
often subjected to sexual abuse by strangers or family members. In such cases,
minor girls may (due to their tender age) be unaware of the nature of abuse the
abuser or rapist is subjecting them to. In such cases, the guardian of minor girls
may belatedly discover the fact of the pregnancy, necessitating the leeway granted
by Rule 3B.
83. Rule 3B(d) includes women with physical disabilities within the special
category of women. They may face additional complications arising from their
disabilities and be unable to carry the pregnancy to term. They may also decide
against carrying their pregnancy to term due to any personal difficulties (mental or
physical) which may arise from their disability, either directly or indirectly.
84. Women who are mentally ill (including “mental retardation”) are covered by
Rule 3B(e). It extends to all categories of women who have mental illness. Women
with mental illnesses may realize the fact of their pregnancy or determine that they
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do not want to carry it to term, later than usual. Further, men often sexually assault
women with mental illnesses, especially if they have speech or communication
disabilities, or reside in psychiatric care facilities. Their speech / communication
disability may inhibit them from expressing that somebody has raped them. This
may lead to a delay in the discovery of the pregnancy and its termination. This was
found to be the case in X v. Union of India,
87 where a woman with Down’s
Syndrome had been raped by an unknown person. Her guardian discovered the
pregnancy after the passage of twenty weeks.
85. Rule 3B(f) includes that class of women where foetal anomalies have a
substantial risk of being incompatible with life or where the child, if born, may suffer
from physical or mental “abnormalities” and be seriously handicapped.
86. Rule 3B(g) comprehends within its fold a change in the material
circumstances of the pregnant woman by accounting for pregnant women in
“humanitarian settings or disaster or emergency situations.” Refugees who have
had to flee their homes for any reason or those who find themselves the victims of
a natural or man-made disaster, or otherwise in an emergency would fall within the
ambit of this rule. They may not realise that they are pregnant due to difficulty in
accessing medical facilities. For instance, in Siddhi Vishwanath Shelar (supra),
the petitioner was unable to visit a doctor due to the lockdown instituted by the
government in light of the COVID-19 pandemic and became aware of her
pregnancy only after twenty weeks had elapsed.
87 2017 SCC OnLine Bom 9334
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87. Further, the decision to give birth to and raise a child is necessarily informed
by one’s material circumstances. By this, we mean the situational, social, and
financial circumstances of a woman or her family may be relevant to her decision
to carry the pregnancy to term. Those who fall victim to emergencies or disasters
may unexpectedly find themselves without a home or separated from their families.
They may have lost loved ones. Their livelihood may be adversely affected and
they may undergo other deeply impactful changes in their lives, both material and
psychological. The possibility that they have suffered grave injuries which alter their
mobility or quality of life cannot be discounted. The myriad changes that may take
place in the aftermath of a disaster, emergency, or humanitarian crisis cannot be
exhaustively listed or envisaged. Each woman’s circumstances are unique and we
have merely listed (by way of illustration) some of the many potential repercussions
of the catastrophes accounted for in Rule 3B(g).
88. A woman in such situations may have decided to have a child before the
emergency or disaster which changed her material circumstances. However, this
change may understandably impact each woman’s evaluation of her ability to raise
a child as well as her willingness to carry the pregnancy to term. While many
women may decide to carry the pregnancy to term, others may no longer find the
pregnancy to be a viable or practical option. It is ultimately the prerogative of each
woman to evaluate her life and arrive at the best course of action, in view of the
changes to her material circumstances.
89. Rule 3B(c) states that a “change in the marital status during the ongoing
pregnancy (widowhood and divorce)” renders women eligible for termination of
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their pregnancy under Section 3(2)(b). The impact of the continuance of an
unwanted pregnancy on a woman’s physical or mental health should take into
consideration various social, economic, and cultural factors operating in her actual
or reasonably foreseeable environment, as provided in Section 3(3). The rationale
behind Rule 3B(c) is comparable to the rationale for Rule 3B(g) i.e., a change in a
woman’s material circumstances during the ongoing pregnancy.
90. Rule 3B(c) is based on the broad recognition of the fact that a change in the
marital status of a woman often leads to a change in her material circumstances.
A change in material circumstance during the ongoing pregnancy may arise when
a married woman divorces her husband or when he dies, as recognized by the
examples provided in parenthesis in Rule 3B(c). The fact that widowhood and
divorce are mentioned in brackets at the tail end of Rule 3B(c) does not hinder our
interpretation of the rule because they are illustrative.
91. A change in material circumstance may also result when a woman is
abandoned by her family or her partner. When a woman separates from or divorces
her partner, it may be that she is in a different (and possibly less advantageous)
position financially. She may no longer have the financial resources to raise a child.
This is of special concern to women who have opted to be a homemaker thereby
forgoing an income of their own. Moreover, a woman in this situation may not be
prepared to raise a child as a single parent or by coparenting with her former
partner. Similar consequences may follow when a woman’s partner dies.
92. Women may undergo a sea change in their lives for reasons other than a
separation with their partner (Rule 3B(c)), detection of foetal “abnormalities” (Rule
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3B(f)), or a disaster or emergency (Rule 3B(g)). They may find themselves in the
same position (socially, mentally, financially, or even physically) as the other
categories of women enumerated in Rule 3B but for other reasons. For instance, it
is not unheard of for a woman to realise that she is pregnant only after the passage
of twenty weeks.88 Other examples are if a woman loses her job and is no longer
financially secure, or if domestic violence is perpetrated against her,89 or if she
suddenly has dependents to support. Moreover, a woman may suddenly be
diagnosed with an acute or chronic or life-threatening disease, which impacts her
decision on whether to carry the pregnancy to term. 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 benefits in law extend equally to both single and
married women.
93. A recognition of the fact that there may be a change in a woman’s material
circumstance animates Rule 3B(c), Rule 3B(g) and Rule 3B(f). However, Rule 3B
does not enumerate all the potential changes that a woman’s material
circumstances may undergo. It merely specifies some of the potential changes to
a woman’s material circumstances, in sub-rules (c), (f) and (g). From the object
and purpose of the MTP Act, its overall scheme, and the categories of women
specified in Rule 3B, it is evident that it was not the intention of the legislature to
88 Siddhi Vishwanath Shelar v. State of Maharashtra, 2020 SCC OnLine Bom 11672 89 Sidra Mehboob Shaikh v. State of Maharashtra, 2021 SCC OnLine Bom 1839
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restrict the benefit of Section 3(2)(b) and Rule 3B only to women who may be
confronted with a material alteration in the circumstances of their lives in the limited
situations enumerated in Rule 3B. Rather, the benefit granted by Rule 3B must be
understood as extending to all women who undergo a change of material
circumstances.
94. It is not possible for either the legislature or the courts to list each of the
potential events which would qualify as a change of material circumstances. Suffice
it to say that each case must be tested against this standard with due regard to the
unique facts and circumstances that a pregnant woman finds herself in.
F. Constitutional values animating the interpretation of the MTP Act and
the MTP Rules
95. Certain constitutional values, such as the right to reproductive autonomy,
the right to live a dignified life, the right to equality, and the right to privacy have
animated our interpretation of the MTP Act and the MTP Rules. A brief discussion
of these values is undertaken below.
i. The right to reproductive autonomy
96. The ambit of reproductive rights is not restricted to the right of women to
have or not have children. It also includes the constellation of freedoms and
entitlements that enable a woman to decide freely on all matters relating to her
sexual and reproductive health. Reproductive rights include the right to access
education and information about contraception and sexual health, the right to
decide whether and what type of contraceptives to use, the right to choose whether
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and when to have children, the right to choose the number of children, the right to
access safe and legal abortions, and the right to reproductive healthcare. Women
must also have the autonomy to make decisions concerning these rights, free from
coercion or violence.
97. Zakiya Luna has, in a 2020 publication, argued that reproduction is both
biological and political.90 According to Luna, it is biological since physical bodies
reproduce, and it is political since the decision on whether to reproduce or not is
not solely a private matter. This decision is intimately linked to wider political,
social, and economic structures. A woman’s role and status in family, and society
generally, is often tied to childbearing and ensuring the continuation of successive
generations.
98. To this, we may add that a woman is often enmeshed in complex notions of
family, community, religion, and caste. Such external societal factors affect the way
a woman exercises autonomy and control over her body, particularly in matters
relating to reproductive decisions. Societal factors often find reinforcement by way
of legal barriers restricting a woman’s right to access abortion. The decision to have
or not to have an abortion is borne out of complicated life circumstances, which
only the woman can choose on her own terms without external interference or
influence. 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.
90 ZAKIYA LUNA, REPRODUCTIVE RIGHTS AS HUMAN RIGHTS: WOMEN OF COLOR AND FIGHT FOR REPRODUCTIVE JUSTICE
(NYU Press, 2020)
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99. The right to reproductive autonomy is closely linked with the right to bodily
autonomy. As the term itself suggests, bodily autonomy is the right to take
decisions about one’s body. The consequences of an unwanted pregnancy on a
woman’s body as well as her mind cannot be understated. The foetus relies on the
pregnant woman’s body for sustenance and nourishment until it is born. The
biological process of pregnancy transforms the woman’s body to permit this. The
woman may experience swelling, body ache, contractions, morning sickness, and
restricted mobility, to name a few of a host of side effects. Further, complications
may arise which pose a risk to the life of the woman. A mere description of the side
effects of a pregnancy cannot possibly do justice to the visceral image of forcing a
woman to continue with an unwanted pregnancy. Therefore, the decision to carry
the pregnancy to its full term or terminate it is firmly rooted in the right to bodily
autonomy and decisional autonomy of the pregnant woman.
100. In K S Puttaswamy v. Union of India,
91 a nine-judge bench of this Court
recognized the right to privacy as a constitutionally protected right under Article 21
of the Constitution. In Puttaswamy (supra), this Court held that the right to privacy
enables individuals to retain and exercise autonomy over the body and mind. The
autonomy of the individual was defined as “the ability to make decision on vital
matters of concern to life.”92 The judgement delivered on behalf of four judges
described the right to privacy in the following terms:
“297. … Privacy postulates the reservation of a private
space for the individual, described as the right to be let
alone. The concept is founded on the autonomy of the
individual. The ability of an individual to make choices lies
91 (2017) 10 SCC 1 92 KS Puttaswamy v. Union of India (2017) 10 SCC 1, at paragraph 298 (“Puttaswamy”)
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at the core of the human personality. The notion of
privacy enables the individual to assert and control
the human element which is inseparable from the
personality of the individual. The inviolable nature of
the human personality is manifested in the ability to
make decisions on matters intimate to human life. The
autonomy of the individual is associated over matters
which can be kept private. These are concerns over
which there is a legitimate expectation of privacy. The
body and the mind are inseparable elements of the
human personality. The integrity of the body and the
sanctity of the mind can exist on the foundation that
each individual possesses an inalienable ability and
right to preserve a private space in which the human
personality can develop. Without the ability to make
choices, the inviolability of the personality would be in
doubt.”
(emphasis supplied)
101. Importantly, Puttaswamy (supra) also deals with facets of reproductive
autonomy. Chelameshwar, J. held that a “woman’s freedom of choice whether to
bear a child or abort her pregnancy are areas which fall in the realm of privacy.”93
This Court recognized the right to bodily integrity as an important facet of the right
to privacy. Puttaswamy (supra) considered Suchita Srivastava v. Chandigarh
Administration94 to reiterate that the statutory right of a woman to undergo
termination of pregnancy under the MTP Act is relatable to the constitutional right
to make reproductive choices under Article 21 of the Constitution.95
102. In Suchita Srivastava (supra) this Court explicitly recognized the concept
of reproductive autonomy. In this case, the victim, an orphaned woman of around
19 years, with mental retardation, became pregnant as a result of a rape that took
place while she was an inmate at a government-run welfare institution. After the
93 Puttaswamy, at paragraph 373 94 (2009) 9 SCC 1 95 Puttaswamy, at paragraph 82
PART F
59
discovery of her pregnancy, the Chandigarh Administration approached the High
Court of Punjab and Haryana seeking approval for the termination of her
pregnancy. The High Court constituted an expert body to conduct an enquiry into
the facts. The expert body recorded that the victim had expressed her willingness
to bear the child and accordingly recommended the continuation of the pregnancy.
However, the High Court directed the termination of the pregnancy on the ground
that the victim was mentally incapable of making an informed decision on her own.
103. A three-judge Bench of this Court disagreed with the High Court’s decision.
In a judgment authored by K G Balakrishnan, C.J., this Court emphasized that the
consent of the pregnant woman is an essential requirement to proceed with the
termination of a pregnancy under the MTP Act. It was held that the state
administration cannot claim guardianship of the woman as she was a major. It was
further held that the woman only had “mild mental retardation” and was therefore
competent to give her consent in terms of Section 3(4)(a) of the MTP Act. This
Court concluded that the state must respect the reproductive rights of women with
“mental retardation” with regard to decisions about terminating their pregnancy. In
the process, this Court recognized that a woman’s right to reproductive autonomy
is a dimension of Article 21 of the Constitution:
“22. There is no doubt that a woman's right to make
reproductive choices is also a dimension of “personal
liberty” as understood under Article 21 of the Constitution
of India. It is important to recognise that reproductive
choices can be exercised to procreate as well as to abstain
from procreating. The crucial consideration is that a
woman's right to privacy, dignity and bodily integrity should
be respected. This means that there should be no
restriction whatsoever on the exercise of reproductive
choices such as a woman's right to refuse participation in
sexual activity or alternatively the insistence on use of
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60
contraceptive methods. Furthermore, women are also free
to choose birth control methods such as undergoing
sterilisation procedures. Taken to their logical conclusion,
reproductive rights include a woman's entitlement to carry
a pregnancy to its full term, to give birth and to
subsequently raise children. However, in the case of
pregnant women there is also a “compelling State interest”
in protecting the life of the prospective child. Therefore, the
termination of a pregnancy is only permitted when the
conditions specified in the applicable statute have been
fulfilled. Hence, the provisions of the MTP Act, 1971 can
also be viewed as reasonable restrictions that have been
placed on the exercise of reproductive choices.”
104. Suchita Srivastava (supra) rightly recognised that the right of women to
make reproductive choices is a dimension of personal liberty under Article 21. It
held that reproductive rights include a woman’s entitlement to carry the pregnancy
to full term, give birth, and raise children. More importantly, it also recognised that
the right to reproductive choice also includes the right not to procreate. In doing so,
it situated the reproductive rights of women within the core of constitutional rights.
105. Decisional autonomy is an integral part of the right to privacy. Decisional
autonomy is the ability to make decisions in respect of intimate relations.96 In
Puttaswamy (supra) this Court held that personal aspects of life such as family,
marriage, procreation, and sexual orientation are all intrinsic to the dignity of the
individual.97 The right to privacy safeguards and respects the decisional autonomy
of the individual to exercise intimate personal choices and control over the vital
aspects of their body and life. In Common Cause v. Union of India,
98 this Court
observed that right to privacy protects decisional autonomy in matters related to
bodily integrity:
96 Puttaswamy, at paragraph 248 97 Puttaswamy, at paragraph 298 98 (2018) 5 SCC 1
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61
“441. The right to privacy resides in the right to liberty and
in the respect of autonomy. The right to privacy protects
autonomy in making decisions related to the intimate
domain of death as well as bodily integrity. Few moments
could be of as much importance as the intimate and private
decisions that we are faced regarding death. Continuing
treatment against the wishes of a patient is not only a
violation of the principle of informed consent, but also of
bodily privacy and bodily integrity that have been
recognised as a facet of privacy by this Court.”
106. The right to decisional autonomy also means that women may choose the
course of their lives. Besides physical consequences, unwanted pregnancies
which women are forced to carry to term may have cascading effects for the rest
of her life by interrupting her education, her career, or affecting her mental wellbeing.
107. In High Court on its Own Motion (supra), an under-trial prisoner
requisitioned for obtaining permission to terminate her 4-month pregnancy to a
judge of the City Civil & Sessions Court visiting the prison. The woman stated that
it would be too difficult for her to maintain another child in addition to her five-monthold child, who was suffering from various malaises such as epilepsy, hernia and
other illnesses. In such circumstances, the woman stated that it was difficult for her
to maintain and take care of another child. The judge forwarded a letter to the High
Court of Bombay along with the woman’s requisition for information and further
action, which was converted into a suo moto PIL. The High Court referred to the
relevant provisions of the MTP Act to observe that mental health can deteriorate if
the pregnancy is forced or unwanted:
“14. A woman's decision to terminate a pregnancy is not a
frivolous one. Abortion is often the only way out of a very
difficult situation for a woman. An abortion is a carefully
considered decision taken by a woman who fears that the
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62
welfare of the child she already has, and of other members
of the household that she is obliged to care for with limited
financial and other resources, may be compromised by the
birth of another child. These are decisions taken by
responsible women who have few other options. They are
women who would ideally have preferred to prevent an
unwanted pregnancy, but were unable to do so. If a woman
does not want to continue with the pregnancy, then forcing
her to do so represents a violation of the woman's bodily
integrity and aggravates her mental trauma which would
be deleterious to her mental health.”
108. A woman can become pregnant by choice irrespective of her marital status.
In case the pregnancy is wanted, it is equally shared by both the partners.
However, in case of an unwanted or incidental pregnancy, the burden invariably
falls on the pregnant woman affecting her mental and physical health. Article 21 of
the Constitution recognizes and protects the right of a woman to undergo
termination of pregnancy if her mental or physical health is at stake. Importantly, it
is the woman alone who has the right over her body and is the ultimate decisionmaker on the question of whether she wants to undergo an abortion.
ii. The right to dignity
109. The right to dignity encapsulates the right of every individual to be treated
as a self-governing entity having intrinsic value. It means that every human being
possesses dignity merely by being a human, and can make self-defining and selfdetermining choices. Dignity has been recognized as a core component of the right
to life and liberty under Article 21.
110. If women with unwanted pregnancies are forced to carry their pregnancies
to term, the state would be stripping them of the right to determine the immediate
and long-term path their lives would take. Depriving women of autonomy not only
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over their bodies but also over their lives would be an affront to their dignity. The
right to choose for oneself – be it as significant as choosing the course of one’s life
or as mundane as one’s day-to-day activities – forms a part of the right to dignity.
It is this right which would be under attack if women were forced to continue with
unwanted pregnancies.
111. In Kesavananda Bharati v. State of Kerala,
99 it was held that dignity forms
a part of the basic structure of the Constitution. Such is its fundamental value in
our legal system - the concept of dignity forms the very foundation to the
Constitution and the rights enshrined in it. Dignity inheres in every individual and
is an inalienable aspect of one’s humanity.
112. In Francis Coralie Mullin v. Administrator, Union Territory of Delhi,
100 a
two-judge bench of this Court was dealing with the rights of detenus under the
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act.
This Court recognized that the right to dignity is an essential part of the right to life
under Article 21 of the Constitution. It was observed:
“8. … We think that the right to life includes the right to live
with human dignity and all that goes along with it, namely,
the bare necessaries of life such as adequate nutrition,
clothing and shelter and facilities for reading, writing and
expressing oneself in diverse forms, freely moving about
and mixing and commingling with fellow human beings. Of
course, the magnitude and content of the components of
this right would depend upon the extent of the economic
development of the country, but it must, in any view of the
matter, include the right to the basic necessities of life and
also the right to carry on such functions and activities as
constitute the bare minimum expression of the human-self.
Every act which offends against or impairs human dignity
would constitute deprivation pro tanto of this right to live
99 (1973) 4 SCC 225 100 (1981) 1 SCC 608
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and it would have to be in accordance with reasonable, fair
and just procedure established by law which stands the
test of other fundamental rights.”
113. In Puttaswamy (supra) one of us (Dr. D Y Chandrachud, J.) emphasized
the interlinkage between privacy, dignity, and liberty as follows:
“298. Privacy of the individual is an essential aspect of
dignity. Dignity has both an intrinsic and instrumental
value. As an intrinsic value, human dignity is an entitlement
or a constitutionally protected interest in itself. In its
instrumental facet, dignity and freedom are inseparably
intertwined, each being a facilitative tool to achieve the
other. The ability of the individual to protect a zone of
privacy enables the realisation of the full value of life and
liberty. Liberty has a broader meaning of which privacy is
a subset. All liberties may not be exercised in privacy. Yet
others can be fulfilled only within a private space. Privacy
enables the individual to retain the autonomy of the body
and mind. The autonomy of the individual is the ability to
make decisions on vital matters of concern to life. Privacy
has not been couched as an independent fundamental
right. ... The intersection between one's mental integrity
and privacy entitles the individual to freedom of thought,
the freedom to believe in what is right, and the freedom of
self-determination. When these guarantees intersect with
gender, they create a private space which protects all
those elements which are crucial to gender identity. The
family, marriage, procreation and sexual orientation are all
integral to the dignity of the individual. Above all, the
privacy of the individual recognises an inviolable right to
determine how freedom shall be exercised. … Dignity
cannot exist without privacy. Both reside within the
inalienable values of life, liberty and freedom which the
Constitution has recognised.”
114. In Navtej Singh Johar (supra), this Court read down Section 377 of the IPC
insofar as it criminalized consensual sexual conduct between adults of same sex.
Importantly, this Court also recognised that the members of the LGBTQ+
community are entitled to a full range of constitutional rights protected under the
Constitution, including the right to dignity. Dipak Misra, CJ indicated the importance
of dignity:
PART F
65
“144. Dignity is that component of one's being without
which sustenance of his/her being to the fullest or
completest is inconceivable. In the theatre of life, without
possession of the attribute of identity with dignity, the entity
may be allowed entry to the centre stage but would be
characterised as a spineless entity or, for that matter,
projected as a ruling king without the sceptre. The purpose
of saying so is that the identity of every individual attains
the quality of an “individual being” only if he/she has the
dignity. Dignity while expressive of choice is averse to
creation of any dent. When biological expression, be
it an orientation or optional expression of choice, is
faced with impediment, albeit through any imposition
of law, the individual's natural and constitutional right
is dented. Such a situation urges the conscience of the
final constitutional arbiter to demolish the obstruction
and remove the impediment so as to allow the full
blossoming of the natural and constitutional rights of
individuals. This is the essence of dignity and we say,
without any inhibition, that it is our constitutional duty
to allow the individual to behave and conduct
himself/herself as he/she desires and allow him/her to
express himself/herself, of course, with the consent of
the other. That is the right to choose without fear. It
has to be ingrained as a necessary prerequisite that
consent is the real fulcrum of any sexual relationship.”
(emphasis supplied)
115. In Independent Thought v. Union of India,
101 this Court held that sexual
intercourse with a girl below 18 years of age is rape regardless of whether or not she
is married. This Court emphatically rejected the argument that the state had a
compelling state interest in preserving the institution of marriage (even child
marriages), and observed that the impact of Exception 2 to Section 375 IPC has to
be considered with the social realities of the present. It is important to note that the
broader issue of marital rape of adult women was not dealt with since the issue
was not specifically raised in that case. In the context of right to dignity, it was
observed:
101 (2017) 10 SCC 800
PART G
66
“90. We must not and cannot forget the existence of Article
21 of the Constitution which gives a fundamental right to a
girl child to live a life of dignity. The documentary material
placed before us clearly suggests that an early marriage
takes away the self-esteem and confidence of a girl child
and subjects her, in a sense, to sexual abuse. Under no
circumstances can it be said that such a girl child lives a
life of dignity. The right of a girl child to maintain her bodily
integrity is effectively destroyed by a traditional practice
sanctified by IPC. Her husband, for the purposes of
Section 375 IPC, effectively has full control over her body
and can subject her to sexual intercourse without her
consent or without her willingness since such an activity
would not be rape. Anomalously, although her husband
can rape her but he cannot molest her for if he does so he
could be punished under the provisions of IPC. This was
recognised by LCI in its 172nd Report but was not
commented upon. It appears therefore that different and
irrational standards have been laid down for the treatment
of the girl child by her husband and it is necessary to
harmonise the provisions of various statutes and also
harmonise different provisions of IPC inter se.”
116. In the context of abortion, the right to dignity entails recognising the
competence and authority of every woman to take reproductive decisions,
including the decision to terminate the pregnancy. Although human dignity inheres
in every individual, it is susceptible to violation by external conditions and treatment
imposed by the state. The right of every woman to make reproductive choices
without undue interference from the state is central to the idea of human dignity.
Deprivation of access to reproductive healthcare or emotional and physical wellbeing also injures the dignity of women.
G. Purposive interpretation of Rule 3B furthers the constitutional mandate
117. Where two constructions of a provision are possible, courts ought to prefer
the construction which gives effect to the provision rather than rendering the
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67
provision inoperative.102 Courts must prefer a construction which is in favour of the
constitutionality of the statutory provision.103 A narrow, strict interpretation of a
statutory provision which runs counter to the constitutional mandate should be
avoided.
118. It seems to us that to give Rule 3B a restrictive and narrow interpretation
would render it perilously close to holding it unconstitutional, for it would deprive
unmarried women of the right to access safe and legal abortions between twenty
and twenty-four weeks if they face a change in their material circumstances, similar
to married women.
119. The Constitution Bench in Express Newspapers Ltd v. Union of India,
104
gave a wider meaning to Section 9(1) of the Working Journalists (Condition of
Service) and Miscellaneous Provision Act 1955,105 to avoid rendering it
unconstitutional. The Working Journalists Act provides for the relevant criteria for
the fixation of the rate of wages. The petitioners in that case argued that the
Working Journalists Act imposed unreasonable restrictions on the freedom to carry
on business inter alia on the ground that the capacity of the industry to pay was
not set out as one of the criteria in the fixation of wages by the Wage Board. This
Court held that the capacity of the industry to pay was one of the essential
circumstances which should be taken into consideration for fixation of rate of
wages, higher than the bare subsistence or minimum wage.
102 JUSTICE G.P SINGH, G.P. SINGH: PRINCIPLES OF STATUTORY INTERPRETATION, (LEXISNEXIS, 2016), at page 48; CIT
v. S. Teja Singh, AIR 1959 SC 352; M. Pentiah v. Veeramallappa Muddal, 1961 (2) SCR 295; Tinsukhia Electric
Supply Co. Ltd. v. State of Assam, (1989) 3 SCC 709
103 K.P. Varghese v. ITO, (1981) 4 SCC 173; M.L. Kamra v. Chairman-cum-Managing Director, New India
Assurance Co. Ltd, 1992 SCR(1) 220
104 1959 SCR 12, AIR 1958 SC 578 105 “Working Journalists Act”
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120. In Githa Hariharan v. Reserve Bank of India,
106 a three-Judge Bench of
this Court had to interpret the term “after him” in Section 6(a) of the Hindu Minority
and Guardianship Act 1956, which provides that the natural guardian of a Hindu
minor, in the case of a boy or an unmarried girl, is “the father and after him the
mother.” This Court interpreted “after him” to mean “in the absence of” to further
the constitutional mandate of gender equality as enshrined in Article 14 and Article
15 of the Constitution. This Court stated that narrowly interpreting the phrase to
mean a disqualification of a mother to act as a guardian during the lifetime of the
father, would have made the section unconstitutional for violating the constitutional
prohibition against discrimination on the grounds of sex.
121. The object of Section 3(2)(b) of the MTP Act read with Rule 3B is to provide
for abortions between twenty and twenty-four weeks, rendered unwanted due to a
change in the material circumstances of women. In view of the object, there is no
rationale for excluding unmarried or single women (who face a change in their
material circumstances) from the ambit of Rule 3B. A narrow interpretation of Rule
3B, limited only to married women, would render the provision discriminatory
towards unmarried women and violative of Article 14 of the Constitution. Article 14
requires the state to refrain from denying to any person equality before the law or
equal protection of laws. Prohibiting unmarried or single pregnant women (whose
pregnancies are between twenty and twenty-four weeks) from accessing abortion
while allowing married women to access them during the same period would fall
foul of the spirit guiding Article 14. The law should not decide the beneficiaries of
106 (1999) 2 SCC 228
PART H
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a statute based on narrow patriarchal principles about what constitutes
“permissible sex”, which create invidious classifications and excludes groups
based on their personal circumstances. The rights of reproductive autonomy,
dignity, and privacy under Article 21 give an unmarried woman the right of choice
on whether or not to bear a child, on a similar footing of a married woman.
122. In view of the purposive interpretation accorded to Rule 3B, we are not
required to adjudicate upon its constitutional validity.
H. India’s obligations under international law
123. Article 51 of the Constitution requires the state to foster respect for
international law and treaty obligations in the dealings of organised people with
one another. The Protection of Human Rights Act 1993 recognises and
incorporates international conventions and treaties as part of Indian human rights
law.107 International human rights norms contained in treaties and covenants
ratified by India are binding on the state to the extent that they elucidate and
effectuate the fundamental rights guaranteed by the Constitution.108
124. Article 6 of the International Covenant on Civil and Political Rights
recognises and protects the inherent right to life of all human beings. The UN
Human Rights Committee has remarked that, in terms of Article 6, State Parties
have the responsibility to provide safe, legal, and effective access to abortion.109
Further, it was suggested that State Parties should disseminate quality and
107 Section 2(1)(d), Protection of Human Rights Act 1993 108 People’s Union of Civil Liberties v. Union of India, (1997) 3 SCC 433 109 Human Rights Committee, General Comment No. 36 (2018) on article 6 of the International Covenant on Civil
and Political Rights, on the right to life, CCPR/C/GC/36 (30 October 2018)
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70
evidence-based information and education about sexual and reproductive health
to prevent stigmatisation of women and girls seeking abortion.
125. India has also ratified the International Covenant on Economic, Social and
Cultural Rights,
110 which enumerates in detail the right to mental and physical
health. The Committee on Economic, Social and Cultural Rights in their comment
on Article 12 of ICESCR has observed that the right to sexual and reproductive
health is an integral part of the right to the highest attainable physical and mental
health.111
126. India has ratified the Convention on the Elimination of All Forms of
Discrimination against Women.112 Article 12 of CEDAW requires the State Parties
to take appropriate measures to eliminate discrimination against women in the field
health care services in connection with family planning, pregnancy, confinement,
and post-natal period. Similarly, Article 16 urges State Parties to eliminate all forms
of discrimination against women and to ensure that they have the same right to
decide freely and responsibly on the number and spacing of children and access
the relevant information to effectively exercise these rights.
110 “ICESCR” 111 Economic and Social Council, General Comment No. 22 (2016) on the right to sexual and reproductive health
(article 12 of the International Covenant on Economic, Social and Cultural Rights), E/C.12/GC/22 (2 May 2016) 112 “CEDAW”
PART H
71
127. The UN Committee on the Elimination of Discrimination Against Women
emphasized that State Parties should undertake appropriate measures to eliminate
discrimination against women in their access to health-care services, particularly
in areas of family planning, pregnancy and confinement, and post-natal period.113
It is also urged that State Parties should refrain from imposing barriers on women
who seek to pursue their right to access healthcare, including reproductive
healthcare.
128. India’s obligations under international law require the state to bring the MTP
Act in conformity with said obligations. The reproductive rights of women must be
harmonised in light of the principles laid down under the Constitution as well as the
principles of international law codified in the various international conventions
ratified by India. Our interpretation of the MTP Act and the MTP Rules furthers
India’s obligations under international law. However, the state must act proactively
in order to ensure that women in India are able to actualize their right to
reproductive health and healthcare, in line with the obligations assumed by the
country under international law.
113 Committee on the Elimination of Discrimination Against Women, General Recommendation No. 24: Article 12
of the Convention (Women and Health), A/54/38/Rev.1, chap. I (1999)
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72
I. Reiterating the positive obligations of the state
129. True realization of reproductive autonomy is possible only by addressing
problems in the societal contexts within which individuals, particularly women, are
situated. It is not only social stigma which prevents women from realizing the right
to health but also caste and economic location. The cost of an abortion at a private
hospital may be prohibitive for those whose monthly salaries are a fraction of that
cost. Public hospitals in rural areas are often not equipped with the resources to
provide the kind and quality of healthcare that ought to be provided free of cost or
at highly subsidized rates. A lack of awareness about the resources that public
hospitals offer coupled with the discriminatory attitudes of many health providers
only serve to exacerbate this problem.
130. The MTP Act recognises the reproductive autonomy of every pregnant
woman to choose medical intervention to terminate her pregnancy. Implicitly, this
right also extends to a right of the pregnant woman to access healthcare facilities
to attain the highest standard of sexual and reproductive health. It is meaningless
to speak of the latter in the absence of the former. Reproductive health implies that
women should have access to safe, effective, and affordable methods of family
planning and enabling them to undergo safe pregnancy, if they so choose.
131. The Directive Principles of State Policy in Part IV of the Constitution lay
down the fundamental principles in the governance of the country and press upon
the state to apply them while making laws. Article 38(2) of the Constitution requires
the state to promote the welfare of people and eliminate inequalities in
opportunities:
PART I
73
“Article 38. State to secure a social order for the promotion
of welfare of the people - ***
(2) The State shall, in particular, strive to minimize the
inequalities in income, and endeavour to eliminate
inequalities in status, facilities and opportunities, not only
amongst individuals but also amongst groups of people
residing in different areas or engaged in different
vocations.”
132. Article 47 of the Constitution contains a call to the state to improve public
health:
“47. Duty of the State to raise the level of nutrition and the
standard of living and to improve public health – The State
shall regard the raising of the level of nutrition and the
standard of living of its people and the improvement of
public health as among its primary duties and, in particular,
the State shall endeavour to bring about the prohibition of
the consumption except for medicinal purposes of
intoxicating drinks and of drugs which are injurious to
health.”
133. In Devika Biswas v. Union of India,
114 the petitioners challenged the mass
sterilisation program that was implemented by the government in highly unsanitary
conditions. This Court recognized the need to respect and protect different facets
of reproductive health as delineated in international human rights law. It noted that
government policies affecting reproductive freedoms must be aimed at remedying
the systemic discrimination prevailing in society and ensuring substantive equality.
In Paschim Banga Khet Mazdoor Samiti v. State of West Bengal,
115 this Court
observed that Article 21 imposes an obligation on the state to safeguard the right
to health and the right to life of every person. It was held that this constitutional
obligation exhorts the state to provide adequate medical services to the people and
to ensure timely medical treatment to everyone. The above conspectus of cases
114 (2016) 10 SCC 726 115 (1996) 4 SCC 37
PART I
74
reveals that the state has a positive obligation under Article 21 to protect the right
to health, and particularly reproductive health of individuals. In terms of
reproductive rights and autonomy, the state has to undertake active steps to help
increase access to healthcare (including reproductive healthcare such as
abortion).
134. The state must ensure that information regarding reproduction and safe
sexual practices is disseminated to all parts of the population. Further, it must see
to it that all segments of society are able to access contraceptives to avoid
unintended pregnancies and plan their families. Medical facilities and RMPs must
be present in each district and must be affordable to all. The government must
ensure that RMPs treat all patients equally and sensitively. Treatment must not be
denied on the basis of one’s caste or due to other social or economic factors. It is
only when these recommendations become a reality that we can say that the right
to bodily autonomy and the right to dignity are capable of being realized.
135. We clarify that nothing in this judgment must be construed as diluting the
provisions of the Pre-Conception and Pre-Natal Diagnostic Techniques
(Prohibition of Sex Selection) Act 1994.
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136. We dispose of the present appeal in terms of the reasons stated above. The
writ petition before the High Court shall accordingly stand disposed of.
137. Pending applications, if any, stand disposed of.
..…………...…...….......………………........J.
 [Dr Dhananjaya Y Chandrachud]
…..…..…....…........……………….…........J.
 [A S Bopanna]
…..…..…....…........……………….…........J.
 [J B Pardiwala]
New Delhi;
September 29, 2022

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