My body my right! SC's historic ruling on abortion breathes fresh life into women's rights of equality

The Supreme Court of India has upheld abortion rights for all women, whether they are married or unmarried.

This is a historic move that contrasts the progressive stance of India’s top jurists against the US apex court’s ruling just months ago that turned the clock backwards on women’s rights.

The Supreme Court was studying whether the exclusion of an unmarried woman, whose pregnancy arises out of a consensual relationship, from rule 3B of the Medical Termination of Pregnancy Act was valid.

In its landmark decision, the SC ruled that all women – married or unmarried – are entitled to safe and legal access to abortion. The court said that the exclusion of an unmarried woman in a live-in relationship from the Medical termination of Pregnancy Rules was unconstitutional. This means that even unmarried women have the right to end pregnancies in the 20-24 week period.

What makes this ruling progressive?

This ruling effectively shows that the top court recognises that women can be sexually active outside a marital relationship. This itself is a progressive outlook considering large parts of the world shun such behaviour particularly among women. India’s top legal minds, at least, are aware of and support the right of women to exercise their agency in matters of personal choice.

All debates about women’s rights arguably are centered around choice. It is the ability to identify and pursue goals or a way of life without being bound by religious or social dogmas or biases. Many nations, despite professing liberty in their constitution have failed to live up to the standard they have set for themselves where women’s ‘choice’ is concerned.

In the US, religion interfered with women’s rights over their own bodies when the country’s Supreme Court, in June this year, took away their access to legal abortion. Though individual states can frame their own laws on the medical procedure, many women from economically weaker sections will be limited by the cost of travel and other factors in securing safe healthcare at a time when they are most vulnerable.

However, with its ruling, the Indian Supreme Court has elevated abortion beyond choice, making the access to safe and legal medical procedures a ‘right’ for all women. While reading out the verdict, justice Chandrachud noted that reproductive autonomy is related to bodily autonomy and that right cannot be taken away from women. The court’s incisive argument was that since the foetus sustains on the woman’s body, she must have the agency to keep or terminate the pregnancy.

Bodily autonomy is the most basic right yet we find that in our day to day lives, this is given little value. Many norms that exist in the garb of choice for women often reward a particular behaviour over another in a million subtle ways thereby ‘forcing’ a ‘choice’.

Keeping up with the times

As he passed the judgment, Justice Chandrachud said, “If Rule 3B(c) is understood as only for married women, it would perpetuate the stereotype that only married women indulge in sexual activities.” Calling this constitutionally unsustainable, he said that the distinction between married and unmarried women was artificial.

The bench that delivered the landmark verdict comprised of justices AS Bopanna and JB Pardiwala and was led by Chandrachud.

Reading excerpts of the judgment, Chandrachud further said, “The right to reproductive autonomy is related to bodily autonomy. The foetus relies on the woman's body to sustain. Therefore, the decision to terminate is firmly rooted in their right of bodily autonomy.”

He said that preventing women from having autonomy over their bodies would be an affront to their dignity.

The bench also acknowledged that sex and gender-based violence in all its forms has been a part of families. Chandrachud said that “married women may also form part of survivors of sexual assault or rape” – this is significant in a country where marital rape is not considered a crime (yet).

He also said that the MTP Act was framed in 1971 keeping married women in mind but as society changes, so should its laws. He also noted that updated laws should also include non-traditional families – an issue that is being raised by India’s LGBTQIA+ community. (Read Complete judgement below).

The verdict has indeed thrown up many more debates that surely, with the passage of time, will also come to their logical conclusion in the court.

In 2021 the government raised the ceiling limit for the medical termination of pregnancy and also added several categories of women who could access abortion including victims of assault, those undergoing a change in marital status besides minors and those with disabilities etc.

Lawmakers and those who uphold justice may be on the same page as far as women’s rights are concerned but the ‘rule of law’ will thrive when the law enforcement machinery also reforms its attitude toward women because revolution happens bottom up.

However, by paving the way for change to begin, the Supreme Court has indeed delivered one of the most progressive verdicts that set an example for the world.