Denying safe abortion to single women with pregnancies up to 24 weeks is violative of their reproductive rights, bodily autonomy: Supreme Court 

September 29, 2022 09:17 pm | Updated 09:17 pm IST

A gynaecologist explains an abortion procedure at a hospital in Bihar’s Muzaffarpur. File photo: The Packard Foundation via Getty Images

A gynaecologist explains an abortion procedure at a hospital in Bihar’s Muzaffarpur. File photo: The Packard Foundation via Getty Images

In a historic judgment, the Supreme Court on Thursday allowed unmarried and single women whose pregnancies are between 20 and 24 weeks to access safe and legal abortion care on par with their married counterparts.

A Bench led by Justice D.Y. Chandrachud pried open the restrictive grip of a 51-year-old abortion law which bars unmarried women from terminating pregnancies which are up to 24-weeks old. The Medical Termination of Pregnancy Act of 1971 and its Rules of 2003 prohibit unmarried women who are between 20 weeks to 24 weeks pregnant to abort with the help of registered medical practitioners.

“The rights of reproductive autonomy, dignity and privacy under Article 21 of the Constitution gives an unmarried woman the right of choice as to whether or not to bear a child on a similar footing as that of a married woman,” Justice Chandrachud held.

The court declared that prohibiting single or unmarried pregnant women with pregnancies between 20 and 24 weeks from accessing abortion while allowing married women with the same term of pregnancy to access the care was violative of the right to equality before law and equal protection (Article 14).

The court said a single or unmarried woman may suffer the same “change in material circumstances” or injury to mental health that a married pregnant woman may have. She may be abandoned or lose a job or be subject to domestic violence during an ongoing pregnancy. She may not want to have a child with her former partner. She may also be in danger of her life due to foetal abnormalities. A single woman may also have been exploited or the cause of her pregnancy may simply be due to contraceptive failure, leaving her in mental anguish.

The source of her pregnancy may also be the same vulnerability that applies to other women. There is a need to have a forward-looking interpretation of the law, the court said.

“The law should not decide the beneficiaries of a statute based on narrow patriarchal principles about what constitutes permissible sex. This would create invidious classifications,” Justice Chandrachud said in the judgment which happen to coincide with the International Safe Abortion Day.

The court said the Medical Termination of Pregnancy (Amendment) Act of 2021 has addressed the “continuing crisis” of unsafe abortions. Close to eight women die everyday in India due to unsafe abortions. Sixty-seven per cent of the abortions carried out in the country between 2007-2011 were classified unsafe by studies. One of the reasons, the Parliament was aware, was that women outside marriages and in poor families were left with no choice but use unsafe or illegal ways to abort unwanted pregnancies. Hence, to address this issue, the 2021 amendments had included the word ‘partner’, showing that the law was concerned not only about women who undergo pregnancy within marriage, but outside marriage too. After all, the medical risk was the same for both married and unmarried women.

The court said the artificial distinction between married and unmarried women was not constitutionally sustainable. “The benefits of law extend equally to single and married women… If women with unwanted pregnancies are forced to carry them out to term, the state would be stripping them of their right to determine the immediate and long-term paths their lives would take and deprive women of autonomy not only over their bodies but also over their lives. This will be an affront to their dignity,” Justice Chandrachud observed in the verdict.

The court held that reproductive autonomy required every pregnant woman to have the intrinsic right to choose to have or not have to undergo abortion without any consent or authorisation from a third party.

“The decision to carry a pregnancy to its full term or terminate it is firmly rooted in the right to bodily autonomy,” Justice Chandrachud observed, linking reproductive rights of women to their bodily autonomy.

The judgment expanded the ambit of the term “reproductive rights”. It was not restricted to have or not children. ‘Reproductive rights’ of women included a “constellation of rights, entitlements and freedoms for women”.

“Reproductive rights include the right to access education and information about contraception and sexual health. The right to decide whether or what type of contraceptives to use. The right to choose whether or when to have children. The right to choose the number of children. The right to choose safe and legal abortion. The right to reproductive health care… Women must also have the autonomy to make decisions on these rights, free from coercion or violence,” Justice Chandrachud underscored.

Sexual assault by a man of his wife can take the form of rape: Supreme Court

Sexual assault by a man of his wife can take the form of rape, the Supreme Court said in a significant judicial recognition of ‘marital rape’ on September 29.

The Supreme Court said this in a judgment which upheld a single women’s right to abort an unwanted pregnancy of between 20 and 24 weeks. But the court also dealt with how married women, like single women, were exposed to sexual assault within the family and suffer forced pregnancies.

“A woman may become pregnant as a result of non-consensual sexual intercourse performed upon her by her husband. We would be remiss in not recognising that intimate partner violence is a reality and can take the form of rape. The misconception that strangers are exclusively or almost exclusively responsible for sex and gender-based violence is a deeply regrettable one. Sex and gender based violence [in all its forms] within the context of the family has long formed a part of the lived experiences of scores of women,” a Bench led by Justice D.Y. Chandrachud held.

Marital assault merely formed a part of a long list of deeds that amount to violence in the context of the family, the court noted. “It is not inconceivable that married women become pregnant as a result of their husbands having ‘raped’ them. The nature of sexual violence and the contours of consent do not undergo a transformation when one decides to marry. The institution of marriage does not influence the answer to the question of whether a woman has consented to sexual relations,” Justice Chandrachud observed.

Marital rape is not recognised as an offence under the Indian Penal Code (IPC). Exception 2 to Section 375 of the IPC removes marital rape from the ambit of rape. Another Bench of the Supreme Court is currently hearing appeals to remove the Exception. The judgment sends a powerful message and may be cited as a timely precedent before the apex court Bench hearing the marital rape case.

Justice Chandrachud, who authored the judgment, said Medical Termination of Pregnancy Act recognises a husband’s act of sexual assault or forced intercourse committed on his wife as ‘rape’.

It said the Exception to Section 375 (rape) in the IPC was only a “legal fiction”.

However, the court stopped short there, saying understanding ‘rape’ under the MTP Act would not have the effect of striking down Exception 2 to Section 375 IPC. It said the challenge to the Exception was pending consideration before a different Bench of the Supreme Court. “We would leave the constitutional validity to be decided in that or any other appropriate proceeding,” Justice Chandrachud said.

Congress president election | Ashok Gehlot not to contest; Digvijaya Singh collects his nomination papers 

Emerging from Congress president Sonia Gandhi's 10 Janpath residence, Rajasthan Chief Minister Ashok Gehlot on Thursday announced his withdrawal from the race of Congress presidential polls.

“I have apologised to Sonia ji for what happened a couple of days ago,” Gehlot told reporters, adding “it has shaken me and under these circumstances, I won’t be contesting for the Congress President's post”.

“Decision on Rajasthan CM will be taken by Congress president Sonia Gandhi in a day or two,” party leader K.C. Venugopal later said after meeting Gandhi for the second time. The development comes on a day when Gandhi is also expected to meet Gehlot’s rival, Sachin Pilot.

The Rajasthan Chief Minister, who had earlier announced his decision to contest the presidential polls, was scheduled to file his nomination papers on September 28.

But the plan got derailed as lawmakers loyal to him refused to back the high command’s decision of endorsing Pilot as Gehlot’s successor to head the Rajasthan government.

Their refusal to attend a Congress Legislature Party (CLP) meeting not only forced the Congress to issue a show-cause notice to three Gehlot aides — Cabinet Minister Shanti Dhariwal, Minister and Chief Whip Mahesh Joshi and Dharmendra Rathore.

Arriving in Delhi late on Wednesday evening, Gehlot had told reporters that they have always worked with discipline and “small issues and internal politics within the family will be resolved”.

While Gehlot was informally endorsed by the Gandhi family as their choice for the party’s top post, the revolt by Gehlot loyalists prompted Congress’s top leadership to adopt a multi-pronged approach.

Senior leaders Ambika Soni and Anand Sharma reached out to Gehlot for rapprochement, while a plan to look at an alternate candidate was effected. But in a clear sign of Gehlot’s defiance, two senior MLAs in Jaipur held a press conference where they accused AICC’s Rajasthan in-charge Ajay Maken of trying to “reward those who were hell bent on bringing down the Ashok Gehlot government in July 2020 by colluding with the BJP”.

Moments before Gehlot called on Gandhi, former Madhya Pradesh Chief Minister and senior Congress leader Digvijaya Singh on September 29, 2022, collected the nomination form to contest the party’s presidential polls. Singh will file his nomination on September 30, 2022, the last day before the nomination process comes to an end by 3 p.m.

Lok Sabha member Shashi Tharoor is the other contender who has collected the form and declared his intention to contest the polls.

But a third candidate with the Gandhi family’s endorsement cannot be ruled out as party treasurer, Pawan Bansal, had already collected two nomination forms on Tuesday. Ruling himself out, Bansal had claimed that he was carrying the form for the Chandigarh Pradesh Congress Committee. But the last word on the issue may not have been spoken yet.

Senior Bihar official regrets her controversial remarks to school girl; Nitish Kumar hints at possible action 

A day after senior Bihar Indian Administrative Service (IAS) officer Harjot Kaur Bamhrah courted controversy with her remarks to a girl student, she expressed regret over the incident on Thursday.

“I express regret if some girl or participant’s sentiment was hurt with some of my words but the intent was not to humiliate someone or hurt someone’s sentiment but to encourage them for progress in future,” Bamhrah said in a letter issued to media persons.

Earlier in the day, after an official engagement at an investors’ meet, Bihar Chief Minister Nitish Kumar told media persons that he was “monitoring everything” and action would be taken if anyone was found guilty.

“We are helping women for empowerment in the State. I came to know about it when I was coming here as some Delhi-based newspapers too have carried this. I’m monitoring each and everything and if someone will be found guilty, action will be taken,” Kumar said.

Bamhrah was seen rebuking a girl student of a government school in a video of the programme that went viral on social media on Wednesday. “When the government is providing us school uniform, scholarship and so many things, why can’t it provide Whisper [a brand of sanitary pads] ₹20-30?” the student had asked Bamhrah at a “Sashakt Beti, Samridh Bihar (empowered daughters, prosperous Bihar): Towards enhancing the value of girls” workshop.

The official is seen responding, “There is need to change the mindset. Why [should] the government provide you everything free? Tomorrow you’ll say government can provide jeans and why not some beautiful shoes thereafter? And eventually, at the time of family planning, you will expect government to provide Nirodh [a brand of condoms] too.”

Bamhrah, an IAS officer of 1992 batch, is also Principal Secretary, Women and Child Welfare Department, and heads the State Women and Child Development Corporation.

The programme was organised by the State Women and Child Development Corporation, UNICEF and other international organisations in Patna on Tuesday. The National Commission of Women (NCW) has taken cognisance of her remarks and sought her explanation within seven days.

When media persons had sought her reaction to the video, Bamhrah had said, “It’s all false, malicious and wrong reporting of an event. I’m known as one of the most vociferous champions of women’s rights and empowerment. Some mischievous elements might have resorted to such low attempts to malign my reputation.”

Revoke ban on PFI: PUCL 

The People’s Union for Civil Liberties (PUCL) on Thursday demanded that the ban on the Popular Front of India (PFI) be revoked and that all the arrested persons be released.

Through the statement, the PUCL said a dialogue should be established with the PFI. The human rights body said the agencies should desist from an “arbitrary” use of the power of arrest to target Muslim youth on grounds of membership or support of PFI and its affiliates.

It demanded the repeal of Unlawful Activities (Prevention) Act and the NIA Act, stating that in the interim, the NIA Act be amended to ensure that the State government concerned was consulted and consent taken before the NIA launched a raid or arrest a resident of that State.

The PUCL said: “...the raids, which have been conducted as a media spectacle showcasing massive State power, bodes ill for a constitutional democracy based on rule of law, pushing the Muslim community further into fear, intimidation, alienation, and silence”. Stating that the operation had serious implications on federalism, it alleged that the local police of non-BJP States, such as Tamil Nadu and Rajasthan, were kept in the dark.

According to the PFI, the PUCL said, over 300-400 of its cadre had been picked up with almost the entire top leadership and the Social and Democratic Party of India (SDPI) being taken into custody.

Russia set to annex Ukraine territory; West warns of new sanctions

Russia was poised to annex a swath of Ukraine within days, releasing what it called vote tallies showing overwhelming support in four provinces to join it, after what Ukraine and the West denounced as illegal sham referendums held at gunpoint.

On Moscow’s Red Square, a stage with giant video screens has been set up, with billboards proclaiming “Donetsk, Luhansk, Zaporizhzhia, Kherson -- Russia!”

A view shows screens and banners on constructions erected ahead of an expected event, dedicated to the results of referendums on the joining of four Ukrainian self-proclaimed regions to Russia, on a bridge near the Kremlin and Red Square in central Moscow on September 29, 2022. Slogans on the banners read: “Donetsk, Luhansk, Zaporizhzhia, Kherson - Russia!”

A view shows screens and banners on constructions erected ahead of an expected event, dedicated to the results of referendums on the joining of four Ukrainian self-proclaimed regions to Russia, on a bridge near the Kremlin and Red Square in central Moscow on September 29, 2022. Slogans on the banners read: “Donetsk, Luhansk, Zaporizhzhia, Kherson - Russia!” | Photo Credit: Reuters

The head of the upper house of the Russian parliament said it could consider the incorporation of the four partially occupied regions on October , three days before President Vladimir Putin’s 70th birthday.

The Russian-installed administrations of the four provinces have formally asked Putin to incorporate them into Russia, which Russian officials have suggested is a formality.

“This should happen within a week,” Rodion Miroshnik, the Russia-installed ambassador to Moscow of the self-proclaimed Luhansk People’s Republic, told the RIA state news agency.

“The main thing has already happened – the referendum has taken place. Therefore, let’s say, the locomotive has already started and it’s unlikely to be stopped.”

To annex the territories, which represent about 15% of Ukraine, some sort of treaty will need to be struck and ratified by the Russian parliament, which is controlled by Putin allies. The areas will then be seen as part of Russia and its nuclear umbrella will extend to them. Putin has warned he would use nuclear weapons to protect Russian territory from attack.

Residents who escaped to Ukrainian-held areas in recent days have told of people being forced to mark ballots in the street by roving officials at gunpoint. Footage filmed during the exercise showed Russian-installed officials taking ballot boxes from house to house with armed men in tow.

“They can announce anything they want. Nobody voted in the referendum except a few people who switched sides. They went from house to house but nobody came out,” said Lyubomir Boyko, 43, from Golo Pristan, a village in Russian-occupied Kherson province.

Russia says voting was voluntary, in line with international law, and that turnout was high. The referendums and the notion of annexations have been rejected globally, as was Russia’s 2014 takeover of Crimea from Ukraine.

Ukrainian President Volodymyr Zelenskiy sought to rally international support against annexation in a series of calls with foreign leaders, including those of Britain, Canada, Germany and Turkey.

In Brief: 

In what marks the first hike in small savings rates since January 2019, the government on Thursday announced minor upticks of 0.1% to 0.3% in the interest rates payable on five small savings instruments (SSIs), including the Kisan Vikas Patra, Senior Citizens’ Savings scheme and time deposits for 2 and 3 years, for the quarter beginning October 1. Rates were left unchanged for seven other designated small savings schemes, including the Public Provident Fund (PPF) at 7.1%, Sukanya Samriddhi Account Scheme at 7.6%, National Savings Certificate (6.8%), as well as five-year recurring and time deposits (5.8% and 6.7%, respectively). Returns on savings deposits and one-year time deposits were also kept static at 4% and 5.5%. 

Evening Wrap will return tomorrow.  

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