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

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

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

i. The right to reproductive autonomy .....................................................55

ii. The right to dignity..................................................................................62

G. Purposive interpretation of Rule 3B furthers the constitutional mandate

H. India’s obligations under international law..............................................69

I. Reiterating the positive obligations of the state......................................72

PART A

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

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

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

(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

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

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

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

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;

(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

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

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

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

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;

(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

(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

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

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

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

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

PART D

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.

PART E

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

PART E

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

PART E

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

PART E

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

PART E

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

PART E

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,

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

PART E

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

PART E

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

PART E

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.”

PART E

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.

PART E

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,

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

PART E

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

PART E

(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

PART E

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)

PART E

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

PART E

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

PART E

pregnancies. The Amendment Bill was termed as a “progressive legislation”

introduced to uphold women’s right to live with dignity.

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)

PART E

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

PART E

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

PART E

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.”

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

PART E

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

PART E

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.

PART E

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”

PART E

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

PART E

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

PART F

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”)

PART F

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

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

PART F

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

PART F

“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

PART F

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

PART F

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

PART F

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

“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

“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

PART G

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”

PART G

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

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)

PART H

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

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)

PART I

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

“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

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.

PART I

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

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