A law, without a flaw: on availing abortion services

The Supreme Court has put unmarried women on an equal footing in availing abortion services 

Updated - August 15, 2022 03:20 pm IST

Published - August 09, 2022 12:10 am IST

The most celebrated kind of court judgments are those that eliminate inherent bias vested in a law or rules framed by the government. The Supreme Court’s move last week to set right a rule that was ‘manifestly arbitrary and violative of women’s right to bodily dignity’ fits right into the concept of justice that is free, and without prejudice or favour to any person or group of people. Earlier, the apex court in its wisdom, facilitated the abortion (beyond 20 weeks) of a young unmarried woman whose partner parted ways after realising she was pregnant. Had the Court rested then, it might have meant relief for one woman who had to go all the way to the top court of the land in order to access what seven other categories of women would have been able to do without legal hassles. While the judgment could have been cited in support of other women in a similar situation, the law retained its flaw, and others would still have had to take the long legal route, and wait upon the discretion of individual judges. Utilising the full, expansive reach of its powers, the Supreme Court has decided to correct the anomaly. A Bench comprising Justices D.Y. Chandrachud and J.B. Pardiwala are considering pronouncing a judgment which would make access to medical abortion a level-playing field. The Medical Termination of Pregnancy Act, 1971 and its Rules, 2003, prohibit unmarried women who are between 20 weeks and 24 weeks pregnant to terminate the pregnancy. The Court’s argument pierced at the heart of the iniquity in the law: if a married woman had access to abortion facilities during the same period, then why should an unmarried woman be prevented from using these services? Exhorting the Government to have a ‘forward-looking interpretation of the law’, the Bench pointed out that the rules mentioned ‘partner’ and not husband.

If the Supreme Court was feted for taking a liberal view of the law, its act of pushing the envelope further to set right existing anomalies in law is to be celebrated in full measure. At a time when the United States’ Supreme Court’s recent ruling overturning Roe vs Wade has drawn that nation back several decades on the abortion question, India’s apex court’s move stands out in sharp contrast. It is the surest example of the Court’s willingness to be modern and progressive, in order to remove antediluvian inconsistencies in existing laws. It is also in the full spirit of Article 14 of the Constitution that guarantees to all persons equality before the law and equal protection of laws. The law cannot cherry-pick beneficiaries, and if there is to be any justice at all, the antiquated principles on which old Acts were built, cannot continue to frustrate young women who claim autonomy of their own body.

To read this editorial in Tamil, click here.

To read this editorial in Hindi, click here.

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