Opinion by Shreya Shree, Gauri Pillai –
On September 29, the Indian Supreme Court delivered a crucial decision which holds the promise of actually leading to the reproductive autonomy of Indian women, in particular through access to abortion.FILE – A woman checks her mobile phone inside the premises of the Supreme Court in New Delhi, India, September 28, 2018. On September 29, 2022, India’s top court for the first time made women central decision makers on abortion rights, while also acknowledging marital rape — currently not punishable under Indian law.
While the core issue before the court was whether unmarried women could seek an abortion under the law – the judges confirmed that they can – the decision also spoke to a range of deeper concerns about abortion and women’s rights over their bodies. It could potentially even pave the way for the criminalisation of marital rape, which, at the moment, is not punishable in India.
Fundamentally, the court did something long overdue: It approached a critical legal question about abortion from the perspective of women’s own experiences, possibly for the first time. And it has set an example that could – and should – echo beyond India.
Barriers to abortion, lived experiences of women
Currently, Indian law allows women to terminate a pregnancy in some circumstances with the approval of a registered medical practitioner. If a woman’s life or health is in serious danger, there’s a significant risk the child could be born with physical or mental abnormalities, or if the pregnancy is because of rape or failed contraceptives, abortion is legal – usually up to 20 weeks of gestation, though abortion is allowed later in exceptional circumstances
However, studies show that women’s ability to access abortion is determined by factors beyond their control, including the availability of abortion services, information and awareness; the prevalent norms of morality in society; economic costs and – most importantly – providers’ attitudes. Women from less-privileged caste and class groups, women with disabilities, transgender and non-binary persons, sex workers, persons living with HIV/AIDS and adolescents face distinctive challenges when it comes to abortion access.
In X v NCT of Delhi (PDF), the case the Supreme Court just addressed, the judges acknowledged these barriers by turning to the “lived experiences” of women.
Crucially, the decision also takes into account legal barriers to abortion. The circumstances under which abortion is allowed stem from a 1971 law, the Medical Termination of Pregnancy Act, and represent carveouts from a broader ban on abortion that still exists under the Indian Penal Code (IPC).
The court referred to the chilling effects of the continuing criminalisation of abortion – wherein the onus is on women to prove and medical practitioners to confirm that the conditions for a legal exemption to the ban are met. More than half a century after the MTP Act was passed, the fear of criminal liability still looms large over service providers. That has led to the proliferation of informal rules or extra-legal conditions such as the requirement of third-party authorisation from courts or government officials, consent of the husband or family, and the insistence that women provide proof of identity, marriage and residence.
The court also considered other legal barriers to abortion. For instance, the law on child sexual abuse imposes a mandatory reporting obligation, which deters minors in consensual relationships from seeking a legal abortion.
By placing women’s experiences at the centre of its decision-making process on abortion rights, the Indian Supreme Court has sent a clear message to all stakeholders, from the government and doctors to the country’s citizens: Women will be heard.
Criminalisation of marital rape
But the top court’s decision impacts more than abortion rights. Indian law does not criminalise marital rape unless the wife is a minor or the husband and wife are living separately under a court decree. In all other cases, a married woman cannot prosecute her husband for non-consensual sexual intercourse. The marital exception to rape has survived major amendments to the IPC and constitutional challenges before the courts. Earlier this year, the exception was challenged before the Delhi High Court on the grounds that it violates the fundamental right to equality. The court gave a split verdict.
In X v NCT of Delhi, the Supreme Court challenged this exception and drew attention to the realities of sex and gender-based violence inflicted by intimate partners or family, and how that further impedes access to abortion for women in abusive relationships. The court asserted that irrespective of the relationship between the victim and the offender, all non-consensual sexual intercourse falls within the “ordinary meaning of rape”. Invoking the constitutional guarantee of “equal protection of law”, the court has now extended the benefit of abortion to survivors of marital rape.
Although this decision is limited to the context of abortion, this recognition of marital rape by the apex court is significant and, hopefully, will lead the way to its criminalisation.
Historically, the global legal agenda on abortion rights has typically been set by a few influential Western nations, especially the United States and Germany. India has not been a participant in this exercise. This could be because India’s own abortion law is not a product of the recognition (and affirmation) of women’s rights as decision-makers on abortion. Rather, it has been motivated, at best, by the state’s quest to save pregnant women from unscrupulous backstreet abortion providers, and at worst by the desire to control India’s growing population.
However, we are now at an inflexion point. The US is rolling back five decades of constitutional protection of abortion rights. India, on the other hand, has steadily been building up its constitutional arsenal on these rights. The Indian Supreme Court’s recent decision is a key milestone in this evolution.
The US Supreme Court’s decision in Dobbs v Jackson, reversing abortion rights previously guaranteed under Roe v Wade, has prompted global deliberations on adding explicit abortion rights to human rights texts to prevent backsliding. However, the Indian Supreme Court has shown that even if these rights are not spelled out explicitly in constitutional texts, they can still be protected.
India’s apex court in its recent decision has put women’s personal liberty and dignity at the heart of abortion rights. It has rejected the stereotype that sexuality is confined to marriage or that a woman loses her agency over her body after marriage, while recognising the wider political, social and economic structures that constrain her status in society and families. The court has cemented the woman’s place as – in the judges’ own words – the “ultimate” decision-maker on abortion.
Crucially, the court has also gone beyond just asking the state to stay out of the way of a woman’s rights. Instead, it has made clear that the state is responsible for proactively eliminating barriers to abortion access. The state, in other words, must help a poor woman to access her rights if she cannot afford an abortion.
Yet, for all these gains, abortion rights in India are still exceptions to an overall criminal ban, with abortion available only in a prescribed set of circumstances. As long as the criminal framing remains, the Supreme Court’s emphatic rights-based assessment risks remaining constitutional rhetoric.
Over the past two years, Colombia, Mexico, Argentina, South Korea and South Australia have either partially or fully decriminalised abortion, with Sierra Leone, Nepal and Chile also moving in that direction.
It’s time for India to take that next bold step too.