The recent verdict of the Supreme Court (SC) on abortion has proved, yet again, that the Indian Judiciary is something to be proud of.

A Division Bench of the Apex Court – headed by Justice D Y Chandrachud, and also comprising of Justices A S Bopanna and J B Pardiwala – said on September 29, 2022: “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.” The Bench also extended the Right to Safe and Legal Abortion up to 24 weeks of pregnancy to unmarried and single women, stressing that it is the “right of every woman to make reproductive choices without undue interference from the State”.

The SC Bench made it clear that the law would not differentiate between married and single women, as far as abortion was concerned, and it would be Unconstitutional to judge marital status in terms of consensual sex. These words are quite important. India had secured its place in the list of the most liberal countries in the world long ago when it comes to laws related to abortion, which has been legalised in this South Asian country since 1971.

The present case revolved around a particular question: Whether Section 3(B) of the amended Medical Termination of Pregnancy (MTP) Act, 2021 allows a single woman to abort a pregnancy between 20-24 weeks of consensual intercourse outside marriage?

Meanwhile, the Supreme Court held:
1) that even unmarried women are eligible to seek termination of pregnancy of 20-24 weeks, from a consensual relationship. 2) to extend the benefit of MTP Rule 3B(b) to all women under 18 years of age. 3) meaning of rape to include marital rape. “A narrow interpretation of Rule 3B, limited only to married women, would render the provision discriminatory towards unmarried women and violative of Article 14 (Equality before Law) of the Constitution,” stated the SC Bench. The Apex Court explained that when other sections of women enjoyed the Right to Abortion, there was no basis for depriving unmarried women of this Right.

The significance of this verdict is immense, as it has acknowledged full rights of a woman over her own body and mind. According to the SC, a woman is not a mere instrument of conception, but her right over her own body is sovereign and unquestionable. Indian Law has always favoured a liberal pro-choice position by recognising the Right to Abortion, not just in case of rape, but also in consensual sex. Keeping in mind the recent verdict of the US Supreme Court, the Indian Supreme Court has taken an important stance on abortion-related laws.

Terming the distinction between married and single women as Unconstitutional, the SC has recognised the autonomy of women in the matter of physical relation as unquestionable. The Apex Court clearly stated: “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.” One can consider this judgement as a recognition of the Right to Sexuality, because the modern society does not consider the relationships between marriage, physical relation and pregnancy as essential.

According to the Supreme Court, if pregnancy occurs as a result of forceful intercourse by the husband in a marital relationship, then it should be treated as marital rape under the MTP Act. This particular part of the verdict, too, is significant, as Indian legal structure still does not criminalise marital rape when the wife is an adult. Recognising marital rape, at least in the context of abortion, means acknowledging a woman’s capacity for self-determination within the marital relationship, as well as her unquestionable right over her own body. In other words, the SC has made it clear that no one, including the husband or members of his family, has the right to force a woman to conceive without her consent.

At a time when Politics and Society at large want to walk towards the Middle Ages, this Liberal Stance of the Supreme Court is a piece of good news for the world’s largest Democracy.

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Published by Koushik Das

Koushik Das (born on May 16, 1976 in Kolkata) is a career journalist. Based in the Indian capital of New Delhi, Koushik writes mainly about foreign policies and current geopolitical issues, and rarely about other topics. His own political ideas are highly influenced by Antonio Gramsci, Louis Althusser, Michel Foucault, Michael Oakeshott and others. English philosopher and political theorist Oakeshott (Dec 11, 1901-Dec 19, 1990) says that “in political activity, men sail a boundless and bottomless sea. There is neither harbour for shelter nor floor for anchorage, neither starting-place, nor appointed destination. But we have to keep afloat”. (Rationalism in Politics, 1962) As a student of Political Science, Koushik loves to share his views on issues, which have great impacts on his thought process (and also on India, South Asia and of course on the global community), with his readers through his website – Boundless Ocean of Politics. By doing so, he tries to keep himself afloat. You will find some of his articles in https://inserbia.info/today/ (https://inserbia.info/today/author/kou_das13_i/), as he has been trying to assess the global geopolitics since 2003. You can also mail him at kousdas@gmail.com View all posts by Koushik Das