26 July 2022 3:30 AM GMT
The American Supreme Court has left the democratic world feeling bewildered and confused with its recent pronouncement on right to abortion in the case of Dobbs v. Jackson Women's Health Organization. When the Founding Fathers drafted the seven Articles long American Constitution, did they envisage it to be a literal and limited document, or did they endeavour to capture the spirit...
The American Supreme Court has left the democratic world feeling bewildered and confused with its recent pronouncement on right to abortion in the case of Dobbs v. Jackson Women's Health Organization. When the Founding Fathers drafted the seven Articles long American Constitution, did they envisage it to be a literal and limited document, or did they endeavour to capture the spirit of liberty, equality, and separation of powers with all its amorphous dimensions in the document? The Dobbs pronouncement results in two very worrisome outcomes. One, that the living constitution theory is rejected in favour of the textual application by the majority to declare that the American Constitution and the Bill of Rights do not contain the fundamental right to female autonomy; and second, an abdication of the power of judicial review of Supreme Court of the United States (SCOTUS) in deference to the widest amplitude of unbridled legislative power.
SCOTUS came to the conclusion that the right of abortion is neither found in the first eight amendments, i.e. the Bill of Rights, nor is it a fundamental right that may be found anywhere else since it wasn't deeply rooted in the history and tradition of the United States. It was categorically held that it was not a part of the Equal Protection Clause since there was no discrimination on basis of gender attracting the heightened scrutiny, and nor was it a part of right to Liberty attracting the due process clause.
In this wake it is interesting to examine what would be the outcome, had the Mississippi Gestational Age Act been under challenge before the Indian Supreme Court (ISC). I consider it important to go down this rabbit hole for two reasons. First, because the Indian courts extensively borrow from American constitutional philosophy while interpreting the content of Indian constitutional rights. And second, would the Indian courts shy away from exercising their power to interpret the Indian Constitution to make it a complete reservoir of inclusive fundamental rights, and consequently trim the contours of a legislation which trammels over fundamental rights. This examination is also crucial for assessing the maturity of Indian constitutional courts, specially in an environment where the legislature aggressively dents the width of substantive personal freedoms.
The Mississippi law prohibited abortion after 15 weeks of pregnancy, and did not prohibit it absolutely. The basic premise of challenge was that the right to female autonomy is absolute, and a woman has a fundamental right to terminate her pregnancy at any time from the inception till full term. Consequently, the State has no right to abrogate or regulate this right. The issue becomes extremely charged in America in the backdrop of Christian outfits which agitate this right to be contrary to religious sentiment. Shorn of the religious sentiment, the issue loses much of its heat in India, though the widespread malady of female infanticide and maternal health are two reasons for the State to regulate abortions in India. However, the content of the right of female autonomy is as crucial to India as to America.
Roe v Wade had read in the right to female autonomy to terminate pregnancy at any time in the due process clause, but had provided a staggered framework of permissibility of State intervention on basis of threat to maternal health. The brightline to maternal health safety was drawn at 24 weeks of pregnancy on basis of medical data.
The complexity of the issue arises due to intersection of several rights and duties. The primary is the conflict between the inherent autonomy of women and their right to make unbridled decisions with regard to their bodies and mental state, versus the external moral, religious, and social expectations or standards. These intersect with the State duty to ensure public health and social order.
If Indian precedents are anything to go by, it can be affirmed that the Indian courts recognise the right to female autonomy as a fundamental right to life and liberty enshrined in Article 21 of the Indian Constitution. The Indian counterpart of the Mississippi Gestational Age Act is the Medical Termination of Pregnancy Act, 1971, (MTP Act), which has been substantially amended in 2021. This enactment has some similar provisions that set some limitations to the circumstances under which abortion is permissible, the persons who are competent to perform the procedure, and the place where it can be performed. I can say with certainty that the ISC would have struck down the Mississippi Gestational Age Act on two counts. First, it has, and would have read the right to female autonomy as a fundamental right; and two the restriction to undergo a termination before 15 weeks as an unreasonable restriction since the safe termination of pregnancy can be upto 24 weeks. The only justifiable rationale for not terminating a pregnancy beyond the brightline of 24 weeks is that it is medically unsafe for the woman to terminate the pregnancy thereafter, and thus it is permissible for the State to step in at this stage on grounds of public health.
The progressive trend of the Indian Supreme Court on the interpretation of the MTP Act is evident from the recent order in X v. The Principal Secretary, Health & Family Welfare Department pronounced by a bench of Justice DY Chandrachud, Justice Surya Kant, and Justice AS Bopanna where the court had reaffirmed the view taken as far back as in 2009 in the case of Suchita Srivastava v Chandigarh Administration, that "(a) woman's right to reproductive choice is an inseparable part of her personal liberty under Article 21 of the Constitution… (and that) she has a sacrosanct right to bodily integrity."
The order interpreted the provision allowing termination of pregnancy beyond 24 weeks for women who had undergone the "change of marital status during the ongoing pregnancy (widowhood or divorce)", to read into it, the change in the status of a consensual relationship. The Court thus allowed an unmarried woman whose consensual relationship had ended to terminate her pregnancy which had carried beyond 24 months in health safe conditions. A reference was made to the celebrated Justice KS Puttuswamy judgement on privacy rights, which held that right to privacy includes privacy of body which "entitles an individual to the integrity of physical aspects of parenthood." This interpretation was fortified by alluding to the object of the MTP Act which is "to liberalise certain existing provisions relating to termination of pregnancy."
.Not just the ISC, but even the Indian High Courts have accepted the fundamental right to female autonomy subject to just and reasonable restrictions to be read into right to life. In 2016, Justice VK Tahilramani and Justice Mridula Bhatkar of the Bombay High Court (The High Court on its own Motion v The State of Maharashtra – 2016) had given extensive directions benefitting women inmates of jail. The judges directed all jails in the State to have arrangements for pregnancy test of all females admitted to a jail, and also give them an option to determine their pregnancy in terms of the MTP Act if they so desired.
The significant diversion of the Indian courts from SCOTUS is that they have found with great ease the fundamental right of female autonomy within the fundamental right to life enshrined in Article 21. Preferring to lean in favour of a contextual interpretation rather than a textual one, the right to life has been given a wide amplitude. Indian courts have gone even a mile ahead and held that the right to termination of pregnancy is equal for married and unmarried woman (X v. The Principal Secretary, Health & Family Welfare Department), and women who are "mentally ill" cannot be deprived of their right to give consent for termination of pregnancy in contrast to "mentally retarded" women whose consent is to be given by the guardian (Suchita Srivastava v Chandigarh Administration).
It is also heartening to believe that, had the constitutional validity of the MTP Act been in question, the Indian Supreme Court would not have hesitated to exercise its power to judicially review the scope of the enactment and define the limitations of legislative power. The theory of basic structure of constitution being firmly entrenched in the Indian judicial ethos gives the assurance that the Indian constitutional courts will not abdicate from this imperative as the SCOTUS has done recently. The recent order ignites the hope that ISC will continue to effectuate the Hobbesian objective of being the guardrails against the executive and the legislative, and not be a redundant pillar of democracy.
The author is a Senior Advocate at the Supreme Court of India. Views are personal.