Article 21 of the Constitution of India guarantees to every person the Right to Life and Liberty. The Courts have interpreted the Article to include the Right to Reproductive Choices. In particular, the Article allows a woman to decide whether she wants to procreate or not. This Right is not absolute and is limited once a woman conceives, as there is a competing interest of the prospective child.
Due to the above backdrop, the Indian laws do not grant women an absolute right to abortion. Unlike the United States of America wherein a woman has the sole Reproductive Right till the visibility of her foetus (roughly 24 weeks), in India the choice of abortion exists only in cases of a possible mental or physical injury, within a period of 12 or 20 weeks of pregnancy. Despite the law stressing on giving a woman autonomy in matters of abortion, the practice is starkly the opposite. The general trend shows that through the use of administrative rigmaroles, the authorities involved try their best to ensure that a woman does not abort. The only respite available to the aggrieved woman is a Court.
Last month, the Rajasthan High Court delivered a significant judgment (State of Rajasthan and Ors. v. S & Anr., W.P. 1344/2019) on the importance of a woman's autonomy in matters of abortion, which is a welcome change. The Court also laid down significant guidelines to be followed, which shall ensure that this autonomy is respected and given effect to timely. I shall discuss the said judgment in the present post.
- Law and the Reproductive Rights of Women in India-
Before discussing the judgment, a brief discussion on the law governing the right to abortion in India, would be helpful. As discussed above, the Right to Life under Article 21 includes a woman's limited reproductive right with the underlying idea being that a woman's privacy, dignity and bodily integrity should be respected.
The right to abortion/terminate is governed by the Medical Termination of Pregnancy Act, 1971 ("Act"). Under the Act, pregnancy can be medically terminated only by a "registered medical practitioner" at a medical facility (government-owned or private) registered as a medical termination of pregnancy centre.
As per the Act, the grounds for abortion are limited to:
- Where continuance of pregnancy would cause risk to the life of the pregnant woman or cause grave injury to her physical or mental health; or
- Where there exists a substantial risk that if the child is born it would suffer from such physical or mental abnormalities as to be seriously handicapped [§ 3].
It should be noted that 'rape' is considered an act that causes grave injury to the mental health of a woman and therefore, conception due to an act of rape is a ground to abort.
Similarly, pregnancy due to the failure of a contraception used by a married couple, is also considered to be a grave injury to the mental health of the woman, and is a ground to abort (Explanations to § 3). It should be noted that such a ground is available only for the purpose of limiting the number of children, which means that if the couple has no children but the woman conceives, it is unlikely that this plea would be allowed.
A woman is allowed to abort, only where the pregnancy does not exceed twelve weeks (requiring certification by one medical practitioner) or twenty weeks (requiring certification by two medical practitioners). In case, the pregnancy exceeds a period of twenty weeks the woman may approach either the High Court or the Supreme Court for the permission to abort (Meera Santosh Pal v. Union of India).
It should be noted that the consent of the pregnant woman is a must, before a pregnancy can be terminated. The only exception to this rule is where the woman is a minor (has not attained the age of 18 years) or is mentally ill, in either case the consent of the guardian (in writing) is a must [§ 3 (4)]. The term 'mentally ill person' means an individual in need of a treatment by reason of a mental disorder and does not include mental retardation (i.e. individuals capable of living in normal social conditions even though they may need some supervision and assistance from time to time, also includes persons with borderline, mild or moderate mental retardation ).
Where the woman seeking an abortion falls in the above criteria i.e. a minor/mentally ill person or mentally retarded, the Courts apply the parens patriae doctrine. Using the doctrine, the Court/State protects the interests of those individuals who are unable to take care of themselves. For a minor or mentally ill person, the 'Substituted Judgment' Test is applied wherein the Court steps into the shoes of the person in question, and attempts to make a decision the person would have made, had she been competent to do so.
The 'Best Interest' Test is applied for the mentally retarded individuals wherein they assess the feasibility of the pregnancy based on the medical opinion and the social circumstances faced by the victim. The underlying rule is that the course of action, which best serves the person in question should be adopted. It should be noted that unlike a mentally ill person, the consent of a 'mentally retarded' individual is mandatory [Suchitra Srivastava and Anr. v. Chandigarh Administration, (2009) 9 SCC 1].
- The Present Case:
A minor was sexually assaulted whereby she unfortunately conceived. She approached the District Court for termination of her pregnancy. The Court at first directed the Chief Medical Officer to medically examine the minor, but finally dismissed her application as not maintainable since her pregnancy exceeded 20 weeks (the time period prescribed under the Act). Therefore, the minor approached the High Court.
The High Court (Single Judge) sought an additional opinion from the Medical Board on whether the termination of pregnancy would be in the best interest of the minor or it could pose a threat to her life and body. According to the Report, there was no serious threat to the life of the minor, if the pregnancy was terminated. The Court on perusing the report, finally rejected the petition of the minor on the ground that the Right to Life of the prospective child required precedence over the Right of Abortion of the Petitioner. Not only was this position against the Medical Report and more importantly against the law, the Court also made certain questionable observations in its judgment. For instance, it observed that the petition has been filed by the minor's widow mother, who cannot perceive the feeling of a mother carrying a baby.
The State Government filed an appeal against the said judgment, invoking the parens patriae doctrine on the grounds that the judgment creates a hurdle in the path of future victims. I wish to point out that by the time the appeal was filed the minor had probably delivered the child. Therefore, the state government should be lauded for its futuristic approach in ensuring that similarly placed individuals, do not undergo the same fate.
The Court in appeal, set aside the judgment of the Single Judge and held that the Right of the Pregnant woman outweighs the right of the foetus and hence, the minor's request for termination should have been allowed.
Key Takeaways from the Judgment-
The judgment has certain key takeaways that shall be very significant in similar matters in future.
Reading the 'Right to Avoid' under Article 21-
The Court in reaching its conclusion, took into account the prospective social stigma, the feeling of remorse and the grave mental condition a victim of rape would undergo if she is asked to continue with the pregnancy, despite her wishes. The Court also opined that a victim of rape has a 'Fundamental Right to Avoid' the after-effects of the Pregnancy. By doing so, the Court explicitly recognised the principles underlined in the Act, which shall aid future victims in approaching the Court and terminating such pregnancies, if they wish to.
The Guidelines laid down-
In addition to recognising the 'Right to Avoid' of rape victims, the Court laid down significant guidelines to be mandatorily followed by the authorities involved, which shall ensure that such an unfortunate case is not repeated. It inter alia laid down,
- State government shall frame guidelines to ensure that victims of rape who are impregnated by sexual assault are provided timely legal and medical facilities to exercise their reproductive choices;
- Once the sexual assault is reported, the Medical Officer/Station House Officer of the Police Station shall forward a report to the District Legal Service Authority to approach the victim and sensitise her about the remedies under the Act.
- A decision on a timely application for termination of pregnancy submitted to the appropriate authority, shall be taken within three days of the submission.
In addition to the above, the Court rightfully struck down the observations made against the minor's mother. It remarked that such an observation was unwarranted and stigmatic to the victim's mother.
In India a pregnancy can be legally terminated in limited cases by either a victim of rape or a minor or by a married woman (using the ground of failed contraception). Even an unmarried woman has no such right, which points to the regressive mindset of our policy makers who give supremacy to the idea of saving the life of the unborn over and above the autonomy of the woman. Once can only wonder what real 'life' the unborn shall have, if her/his birth was forced on the mother. In such cases, the law in America is praiseworthy (discussed here previously).
Sadly, it is difficult for a woman to even exercise this limited right of termination given the harsh realities in the country. For instance, given the bias against abortion, in several cases the application for termination is trapped in the administrative procedure, just to ensure that the period of 20 weeks is crossed. In Z v. State of Bihar (2018) 11 SCC 572, the victim expressed her desire for terminating the pregnancy on 04.03.2017 (around 17 weeks pregnant) but finally the matter was decided on 26.04.2017 when she was already 24 weeks pregnant. The said delay was caused due to the hospital's refusal to terminate, the pendency of the Medical Report, adjournments in hearing etc. The delay caused the Supreme Court to remark,
"It has to be borne in mind that element of time is extremely significant in a case of pregnancy as every day matters and, therefore, the hospitals should be absolutely careful and treating physicians should be well advised to conduct themselves with accentuated sensitivity so that the rights of a woman is not hindered."
Further, the Courts have shown a trend of ordering constitution of several Medical Boards for ascertaining the health of the woman in question. For instance, in the present judgment, despite a medical examination being carried out by the Chief Medical Officer, a second examination was ordered by the Single Judge. Multiple examinations of the victim only add to the delay in deciding her application, thereby hampering her chances of obtaining a termination.
It is little known that a woman who is denied her legal right to terminate, has the option of seeking compensation from the authorities involved for their negligence. In Z's case, the Court granted the victim a sum of Rs. 10 lakhs along with the assurance of a school education for her child, as compensation for the wrong done to her by the authorities.