In the last few days, the Supreme Court judgment in the case X vs The Principal Secretary, Health and Family Welfare Department, Govt of NCT has captured the headlines for its landmark observations. The court has reinforced the principles of bodily and reproductive autonomy by progressively interpreting the modern way of life. The Court has broken new ground through its non-conservative observations.
Bodily and reproductive autonomy should be viewed from three lenses—legal, medical, and societal. On the former, I firmly believe that the Supreme Court missed an opportune moment to strike down laws that currently act as barriers in achieving complete bodily autonomy. Yet, in its interpretation of the laws, it presents a modern outlook by recognising the various forms of family structure and life. It says that laws should not be based on “narrow patriarchal principles”.
The SC rightly emphasizes that laws should keep changing to reflect the changing social norms. Therefore, it comes with no surprise that premarital sex, mental health, marital rape, consensual sex amongst minors, etc feature prominently in the 75-page judgment. It also acknowledges the additional barrier caused by caste and other socio-economic inequalities in accessing abortion rights.
The Medical Termination of Pregnancy Act 2021 allows abortion only on the following grounds: a) contraceptive failure b) rape/coercion, c) grave danger to physical/mental health of the pregnant woman, d) fetal abnormalities. I feel that the SC missed an opportunity to make abortion available on demand.
In the cases of contraceptive failure, the government in 2021 amended the law to say ‘any woman and her partner’ from the earlier ‘married woman and her husband’. So the MTP Act already treats married and unmarried women on an equal footing. The SC observes that unmarried women still turn to unsafe abortions due to the social stigma of unmarried pregnancy as well as denial of service by Registered Medical Practitioners (RMP). In this case, the existence of the law doesn’t automatically translate to implementation and access.
On the other hand, there is the reality of sexual activity between minors which is a crime according to POCSO Act 2012, irrespective of consent. The SC notes, “We cannot disregard the truth that such activity continues to take place and sometimes leads to consequences such as pregnancy”. Young girls often resort to unsafe abortions due to fear of the law as well as hesitation to reveal to their parents/guardians. Additionally, POCSO Act also mandates that anyone with knowledge of any such sexual activity should report to the authorities and failing to do so is a punishable offence. So RMPs who are approached for abortion of minors are required by law to report it. The judgment notes the hurdles caused by it to access of safe abortion, and interprets that the POCSO Act be read ‘harmoniously’ with the MTP Act. This means that the RMP is exempted from revealing the identity of the minor, on the request of the minor or the guardian. Even in criminal cases, this relief shall exist.
The honorable court also advocates that laws must be cognizant of the changing family structure and the institution of marriage is not a precondition for individual rights. It cites two landmark cases of the SC to hammer home this point:
S. Khusboo v Kanniammal wherein a 3-judge bench ruled that live-in relationships and premarital sex are not criminal.
Deepika Singh v. Central Administrative Tribunal wherein a 2-judge bench observed that familial relationships can take the form of domestic, unmarried partnerships or queer relationships. There can be single parent households for any number of reasons, including divorce, separation or death of a spouse .
Sexual assault within the institution of marriage is not uncommon. Activists have been demanding for the criminalization of marital rape for years now. There is pushback from various quarters, some exhibiting the notion that marriage entitles men to sex, disregarding women’s agency. The following line from the SC judgment addresses it: “The institution of marriage does not influence the answer to the question of whether a woman has consented to sexual relations”. Acknowledging the existence of marital rape, it says “It is not inconceivable that married women become pregnant as a result of their husbands having “raped” them.”
Under the ambit of the MTP Act, the court expands the meaning of rape to include marital rape. It says, “Any other interpretation would have the effect of compelling a woman to give birth to and raise a child with a partner who inflicts mental and physical harm upon her.” It is a crucial moment in the fight for criminalization of marital rape. On the matter of grave injury to mental health, the court says, “The determination of the status of one’s mental health is located in one’s self and experiences within one’s environment and social context”. It states that mental health is different from mental illness and has a wide connotation. Therefore, it is to be established from the person’s actual and foreseeable circumstances.
The SC also tries to set a precedent by visibilising genders beyond the heteronormative. It clarifies that the usage of the word "woman" in the document isn’t only for cis-gender women but also includes trans men and non-binary persons. Though it would have had more impact if the term ‘pregnant persons’ was used instead of ‘women’ everywhere in the text, this is a still a beginning.
Looking at all the above, there is no denying that the observations made by the honorable court will shape the gender discourse for years to come. As a country, we still have a long way to go in undoing laws that is rooted in a patriarchal mindset. But every step counts and it is moments like this that gives a glimmer of hope.
The author is the founder of Femme First Foundation, a nonpartisan non-profit organisation amplifying women’s political leadership. She is former National Secretary, NSUI India.