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CASE COMMENTARY ON X VS. THE PRINCIPAL SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVT. OF NCT OF DELHI & ANR. BY: JOSNA ANN BINO & JENNY ROSE PG
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Article Details
CASE COMMENTARY ON X VS. THE
PRINCIPAL SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVT. OF NCT OF
DELHI & ANR.
AUTHORED BY: JOSNA ANN BINO (4 BA LLB B) & JENNY ROSE PG (4 BA LLB A)
2nd year of
BA LLB(Hons.), Christ (Deemed to be University), Bengaluru
CITATION
2022 SCC OnLine SC 1321
BENCH
Hon'ble Dr. Chandrachud, Hon'ble Ms. Kohli,
Hon’ble Pamidighantam Sri Narasimha
INTRODUCTION
Over the years there has been an
increase in the presence of women in various sectors in India including
politics, education, and employment. This progress can be traced back to the
times of Independence when women
actively joined with men in fighting for economic and social rights. In 1950, the Indian Constitution
ensured equal rights and opportunities for women.
The general election that took place in 1952 recognised women’s
participation as voters and as candidates due to the constant advocation of
women’s voting rights by Sarojini Naidu, Annie Besant, and others. Since then,
there have been various efforts for the upliftment of women in India. The 73rd
Amendment in the Constitution has mandated one-third reservation for women
in the local panchayath to ensure the upliftment of women at the
grassroot level. Positions such as the President of India, Lok Sabha
speaker, and chief ministers of various states
have seen a wide
increase in the presence of women.
Even though gender
discrimination and wage gap differences have reduced over the years
they still pose a challenge in the society. In the education sector, there has
been an increase in the enrollment rate, and more women are completing their
secondary education and are getting into professional workplaces. Movements against
the dowry system and female
infanticide gained momentum thus shedding more awareness about social stigmas
in the country. Various legal reforms against workplace harassment and domestic
violence have been passed to ensure the bodily integrity and autonomy of a
woman.
FACTS
The
appellant in this case is a woman who remains unmarried at the age of
twenty-five, hailing from Manipur,
and currently residing in New Delhi. Through a consensual relationship with her
partner, she became pregnant. However, due to her partner's refusal to marry
and her responsibilities as the eldest child within her family, she desired to terminate the pregnancy. She was
at a point where she carried an intrauterine device corresponding to twenty-two weeks of gestational period. Her reasoning
behind ending the pregnancy stemmed from concerns about societal stigma and
harassment faced by single unwed parents, particularly women.
In light of these circumstances, the appellant presented a writ petition
before the High Court of Delhi for permission to terminate her pregnancy. This plea was rooted in fears surrounding social stigmatisation and harassment which she would inevitably
encounter as an unmarried woman raising a child on top of her unemployment
struggles.
ISSUES
Whether
Rule 3B of The Medical Termination of Pregnancy Act, 1971 includes unmarried
women, single women, or women without a partner under its ambit.
LAW
The Medical Termination of Pregnancy
Act 1971
The Medical Termination of Pregnancy
(Amendment) Act 2021
ANALYSIS
1. In this particular case, Chief
Justice D.Y Chandrachud emphasized the importance of comprehending the
underlying intention behind implementing the
Medical Termination of Pregnancy Act in 1971. This involves
focusing on the purpose and objective that drove its creation. It is crucial to
delve into the minds of those responsible for crafting this legislation, as it aids in understanding both its scope and
limitations. When interpreting subordinate laws, it is essential to align them with their enabling Acts. These
subsidiary laws should be reasonable and abide by existing legal frameworks as a whole. In order to truly give meaning and
effect to the original intent and aspirations driving these enabling Acts, they
must be understood in a meaningful manner. The interpretation chosen ought not only to
bring about effective implementation but also to align harmoniously with the
legislative framework at large.
2. Marriage, as a sacred institution,
should transcend mere legal recognition and encompass
society's evolving norms and values. This was reiterated in the landmark case
of [1]Badshah v. Urmila Badshah Godse, where
the court highlighted the necessity of adapting laws to changing times and situations. Speaking on behalf
of a two-judge panel,
Justice Sikri articulated that it is incumbent upon courts to bridge the divide
between legislation and societal dynamics by interpreting laws in line with
their underlying purposes. A similar
stance was upheld
in [2]Navtej Singh Johar
v. Union of India,
wherein the court emphasized that our constitutional framework is inherently
transformative. The judgment focused particularly on contemporary forms of
relationships, highlighting how societal understanding perceives a family,
primarily as an individual unit. The significance lies
not only in recognizing marriage as granting legal rights but also in acknowledging its role as a reflection of prevailing social mores. It calls
for an inclusive interpretation that adapts marriage laws to suit diverse
relationships and ensures they are aligned with modern sensibilities. This presumption fails to acknowledge the reality that many families
do not initially conform to this expectation, and it also overlooks the
numerous factors that can lead to a change in a person's family structure, such
as domestic partnerships, cohabitation, or same-sex relationships. The loss of
a spouse through death, separation/divorce, or any combination of these
events, may result in a household being headed by a
single parent.[3] Treating
live-in relationships and premarital sex as criminal activities has caused
various obstacles within society.
3. The Court further emphasized the
equitable treatment of both married and unmarried women within the nation, as evidenced by the implementation of The Maternity Benefit Act of 1961. This legislation
ensures that all women, regardless of their marital status, are entitled to its provisions. Similarly,
The Hindu Succession Act 1956 extends
property rights to female coparceners, irrespective of their marital status, as
seen in the enactment of the Amendment in 2005.
4.
Section
312 of the Indian Penal Code (IPC) considered
abortion to be unlawful before the passage of The Medical Termination of Pregnancy Act 1971 (MTP). Only those
abortions performed in good faith and exclusively to preserve the mother's life
were exempted from this rule. Maternal morbidity and death rates increased as a
result of women being compelled to seek out unsafe, unsanitary, and
uncontrolled abortions, but since the MTP
Act went into effect, women have been guaranteed access to safe and
authorized medical abortions. The primary goal of this Act is to help women by offering
them access to regulated services for pregnancy termination by licensed medical
professionals.
5. The primary objective behind the
implementation of the MTP Amendment 2021
is to extend equal protection and consideration to single and unmarried
women, placing them on par with their
married counterparts. Furthermore, this amendment acknowledges the potential threat to women's
mental well-being as a significant factor in its decision-making process. Under this
legislative framework, terminating a pregnancy will be permissible up until 24 weeks
gestation, contingent upon the opinion of two qualified registered medical practitioners (RMPs). This extension
of the upper limit for pregnancy termination under specific
conditions was deemed indispensable to uphold essential principles such as dignity,
autonomy, confidentiality, and justice for those women who find themselves
necessitating such procedures. An important aspect of this amendment lies in
removing the terminology referring only to ‘married woman or her husband’ from
within the confines of the MTP Act.
Through this omission, lawmakers aimed to provide clarity
while affording legal protection to pregnancies that occur outside traditional marital institutions.
Significantly, the 2021 Statement of
Objects and Reasons does not make a distinction between married and unmarried women.
Rather, all women are
entitled to the benefit of safe and legal abortions. This is consistent with The Ministry of Health & Family Welfare
Report on ‘Women’s Healthcare: Policy Options’ by the Committee on Empowerment
of Women (2020-2021) where the rights
of single women, widows, and sex workers were also upheld.
6. According to the available data, a
striking 67% of women residing in India make the grave decision to undergo
unsafe abortions, predominantly those belonging to the less privileged
socio-economic echelons. Regrettably, this practice stands as one of the
foremost culprits behind maternal fatalities and instances of debilitating
health issues stemming from these dangerous procedures. Denying access to abortion
increases the chances of unsafe abortion.
7. The intention behind the creation of Rule 3B of the MTP Act is to address
the problem of limited access
to abortion for women whose physical and mental well-being are affected by the
restrictions imposed by previous legislation. This provision allows
for an extension of the
period in which a pregnancy can be terminated beyond twenty weeks, to
acknowledge and consider the various risks posed during pregnancy. Factors such
as changes in the environment during gestation, fetal abnormalities, delayed
discovery of pregnancy in young girls or disabled women, as well as
instances of sexual assault or rape pose both physical and mental health
threats. The cases
of[4]
Sidra Mehboob Shaikh v. State
of Maharashtra and
[5]Siddhi Vishwanath Shelar
v. State of Maharashtra have highlighted this issue.
Consequently, this rule grants these women greater flexibility when it comes to seeking termination for
an unwanted pregnancy by extending the legal
timeframe within which such procedures can be carried out.
8.
Spanning
from Sections (a) to (g), these
provisions encompass a diverse array
of women eligible to benefit
from the aforementioned act. The focus
lies on classification grounded in tangible and consequential alterations in circumstances.
The provision delineates potential circumstances capable
of significantly affecting
material affairs. The courts
possess considerable discretion in interpretation and enforcement based on the
specific nature, factual intricacies, and contextual circumstances involved in
each case under this Act.
9.
Rule 3B (a) extends the entitlement to terminate
a pregnancy to individuals categorized as 'survivors
of sexual assault or rape or incest, ostensibly aligning with the statute's
intended purpose; nevertheless, the court has
highlighted inherent flaws in this provision,
as it inadequately substantiates evidence of assault when legal action has been
pursued against the accused. This inability can present a potential
vulnerability wherein allegations might remain unproven in the court of law.
This scenario raises concerns for exploitation and encroachment upon the rights
of the accused, constituting a viewpoint that may be considered both
unsustainable and morally perverse within the legal framework.
10. Rule 3B (b) delineates
the entitlement of ‘minors’ to
terminate pregnancies under specific
circumstances, aligning coherently with the POCSO Act, wherein minors involved
in consensual relationships resulting in pregnancies below 24 weeks retain
discretion over disclosing their identities, a discretion shared with their
guardians. Simultaneously, the RMP is exempted from disclosing the minor's
identity, a measure aimed at safeguarding the minor's Right to Privacy and
Reproductive Autonomy, as protected under Article 21 of the Indian
Constitution. This strategic maneuver has significantly curtailed the incidence
of unsafe abortions performed by unqualified individuals, thereby reducing
resultant disabilities and fatalities among women coerced into such perilous
procedures due to fears of legal repercussions. The alignment of the provisions
of the POCSO Act with the Constitution imposes penalties on any individual, including the minor, who has
the knowledge of the offense committed. Nevertheless, judicial scrutiny demands
a thorough approach in instances where
pregnancies arise from rape or non-consensual relationships
with either family members or strangers. This underscores the imperative need
for comprehensive sex education in the nation, emphasizing education on reproductive
biology, contraceptive methodologies, and the capacity for minors to seek
support and guidance from parents or guardians upon discovering instances of
pregnancy or sexual assault.
11. Rule 3B (c) allows
the women to pursue abortions within a 24-week time-frame in cases involving
alterations in ‘marital status during an
ongoing pregnancy’. As articulated by the Court, Rule 3B (c) is based on
the broad recognition of the fact that a change in the marital status of a
woman often leads to a change in her material circumstances. This provision was
instituted to safeguard women encountering adverse situations—such as
widowhood, divorce, or familial abandonment—rendering them incapable of
continuing a pregnancy due to
consequential financial constraints. Such women may lack the means
to provide for and support
a child adequately. If the petitioner can substantiate compelling grounds demonstrating how
these circumstances could detrimentally affect her mental and physical well-being, she retains the
entitlement to pursue an abortion.
12. Rule 3B (d) and
Rule 3B (e) pertains to women with physical disabilities under the Rights of Persons with Disabilities Act,
2016[6],
and mentally incapacitated women
respectively. These individuals might lack the capacity to make informed
decisions regarding the potential impact of a pregnancy on their physical and
mental well-being. This situation can inadvertently create an environment
conducive to men perpetrating sexual assaults without detection, resulting in
the delayed discovery of pregnancies, as evidenced in the case of X v Union of India[7], where
the guardian of a woman
with Down Syndrome only
became aware of her pregnancy
after 20 weeks, with the father remaining unidentified. Furthermore, Rule 3B (f) addresses women with fetuses
exhibiting abnormalities, whether physical or mental, posing significant
threats to either the mother
or the unborn child to terminate the pregnancy.
13. Rule 3B (g) parallels
(c) in its provision for women experiencing pregnancies within 'humanitarian settings or disaster
or emergency situations’, permitting government-sanctioned
termination of pregnancies. This allowance extends to women residing in refugee
camps, affected by warfare, natural calamities, or man-made crises. Such
instances arise due to the mother's incapacity to sustain a child within a
harsh environment compounded by the delayed discovery of the pregnancy,
exemplified in the Siddhi Vishwanath Shelar
v State of Maharashtra[8], wherein
the petitioner detected
her pregnancy after twenty weeks owing to constraints in accessing
medical care during the COVID-19 lockdown. These collective factors can lead a
woman to opt for terminating her pregnancy. It is imperative that the
government should meticulously assess each circumstance to uphold the constitutional
right accorded to women in such situations.
14. The debate surrounding terminating
pregnancies remains contentious, straddling the moral spectrum and governmental jurisdiction. In countries like India, alignment
with the Constitution is imperative. The Constitution upholds
human life and dignity, necessitating the formulation of laws
that safeguard these principles without impinging upon individuality and life.
Grounded in constitutional tenets, the Medical
Termination of Pregnancy Act has centered its focus on rights entrenched within Article 14, the Right
to Equality, and Article 21, encompassing the Right to Life and Personal
Liberty. Within this framework of Articles 14 and 21, the Right to lead a
Dignified Life and exercise Reproductive Autonomy falls.
15. Thecourt, in this particular case,
underscored the fundamental significance of Reproductive Autonomy and the Right to Dignity as essential rights
pertaining to women. Reproductive autonomy encompasses
a broad spectrum, encapsulating the Right to Reproduction, Abortion, Sexual
health, Contraceptives, Medical assistance, as well as decisions concerning
children and family size. The court
emphasised that such autonomy
inherently negates the requirement for third-party consent in decisions related to abortion or reproduction. This right,
articulated within Article 21 of the Constitution following Justice K. S. Puttaswamy & Anr. vs.
Union of India and Ors.[9],
was granted to pregnant women to safeguard their safety, health, and protection
against associated risks and complications. Such assertions were reaffirmed in
the Suchita Srivastava vs. Chandigarh
Administration[10],
where the court deemed the right to undergo pregnancy termination as an
integral facet of Article 21. In this scenario involving a conflict between the petitioner's autonomy and
incapacity, a higher bench of the Court sided with the petitioner, highlighting her
'mild mental retardation' and reiterating her right to reproductive autonomy.
16. Additionally, the Right to Dignity pertains
to an individual's self-determination and self-defining attributes inherent in
every human being. The ability to make choices independently is an aspect of
dignity, wherein individuals are entitled to select or choose their activities. Hence, inhibiting
a person from discontinuing an unwanted pregnancy is construed as a direct
infringement upon this fundamental right. The significance of dignity was
emphasised as an integral component of the Constitution's Basic Structure in the Kesavananda Bharati v. State of Kerala[11]. Moreover,
in Francis Coralie Mullin
vs The Administrator, Union[12],
the Court suggested that any action undermining human dignity would constitute
a violation of Article 21. The interconnectedness between privacy, dignity, and
liberty, as observed in the Puttaswamy case[13], marked a remarkable milestone in judicial history.
17. India, esteemed for its significant
contributions to International law across humanitarian, economic, and environmental
domains, holds a position of influence with its laws carrying persuasive and
unassailable value in the global arena. Through International agreements,
countries commit themselves to uphold these laws, thus binding them to
compliance. In alignment with these principles, India's Medical Termination of Pregnancy (MTP) rules are expected
to adhere to International laws and regulations, as articulated within Article
51 of the Directive Principles of State Policy
(DPSP), urging citizens
to respect international laws. The
Protection of Human Rights Act safeguards individuals from state-induced
rights violations, offering
effective recourse. Furthermore, Article 6 of the International Covenant on Civil and Political Rights emphasises
state’s responsibility to ensure access to safe and legal abortion while
highlighting the significance of reproductive and sex education to counter the
stigmatisation of women seeking an abortion. Articulated within Article 12 of the International Covenant on
Economic, Social, and Cultural Rights, the recognition of sexual and
reproductive health as integral to physical and mental well-being is
underscored. Moreover, Articles 12 and
16 of the Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW) urge states to implement appropriate measures combatting
discrimination against women regardless of their socio-economic or political
backgrounds. India, having ratified these laws, is bound to uphold them,
contributing to global order and fostering peace.
18. The obligation of the State extends
beyond the mere implementation of laws; it encompasses the assurance of their intended
efficacy, particularly in a multifaceted nation like India which faces challenges across social,
political, and economic domains. To comprehensively address these complexities,
the State must engage with grassroots realities, acknowledging the diverse
array of issues affecting the country. In India, barriers such as exorbitant
costs for abortion in private healthcare facilities and the proliferation of
unskilled practitioners in rural areas have contributed to a surge
in unsafe pregnancies.
Widespread unawareness about state-provided resources and assistance further
exacerbates the confusion between legitimate support and fraudulent practices
within private sectors. Thus, the government is compelled not only to establish
laws but also to enforce them rigorously, as mentioned in Article 38 (welfare of the people) and Article 47 (public health). For the effective
realisation of these rights, the government must take proactive measures,
emphasising the paramount importance of comprehensive sex education covering
aspects of reproduction, contraception, family planning, and population
dynamics. Equally crucial is ensuring the availability of RMPs and adequate
medical facilities to provide requisite treatment, thereby preventing arbitrary
denial of services based on unjust classifications that impinge upon the right
to equality.
CONCLUSION
In the landmark three-bench judgment
led by the esteemed Dr. D.Y Chandrachud, alongside
the Hon'ble Ms. Kohli and Pamidighantam Sri Narasimha, the Apex Court
modified the Delhi High Court's
decision, issuing an interim order mandating the petitioner's secure
abortion procedure to be carried out by a team of medical
professionals at AIIMS, based on written consent
from her. The crux of the
matter revolved around the interpretation of Rule 3B of the Medical Termination of Pregnancy rules.
The formulation of Rule 3B within the MTP Act stems from an inherent
desire to tackle
the issue of insufficient
access to abortion, particularly for women whose physical and mental welfare is
adversely impacted by the constraints imposed by the prior legislation. This
provision grants a possibility to prolong the timeframe within which a pregnancy can be terminated beyond twenty weeks,
with the explicit objective of recognizing and contemplating the diverse risks
that manifest during gestation. These perils encompass alterations in one's
environmental circumstances throughout pregnancy, developmental irregularities
in the fetus, delayed realization of pregnancy occurring amongst young girls or
disabled women, as well as instances where sexual assault or rape may
exacerbate both physical and psychological harm.
The
right to access
safe abortions 'at will' remain
aspirational for the majority of pregnant women in India. The Court emphasised the
unreasonable nature of such restrictions of excluding unmarried women from
accessing pregnancy termination services, urging alignment with contemporary
social changes rather than clinging to conventional notions of marriage.
Emphasizing the constitutional rights of reproductive autonomy, dignity, and
privacy under Article 21, the Supreme Court affirmed that unmarried women have
the right to make independent decisions regarding contraception, pregnancy, and
childbearing. This holistic concept includes access to sex education and information on contraception, the right to select the type of contraceptives, and the
entitlement to undergo a safe and legal abortion.
These rights are to be exercised freely, devoid of any
coercion or external interference, thereby granting women the autonomy to make
informed decisions about abortion.
[1] Badshah v. Urmila Badshah
Godse (2013) 10 SC CK 0067
[2] Navtej Singh Johar v Union
of India 2018 INSC 790
[3] S Khushboo vs Kanniammal
& Anr AIR 2010 SC 3196
[4] Sidra
Mehboob Shaikh v. State of Maharashtra 2021 SCC Online Bom 1839
[5] Siddhi Vishwanath Shelar v.
State of Maharashtra 2020 SCC OnLine Bom 11672
[6] Rights
of Persons with Disabilities Act, 2016 (49 of 2016)
[7] X v Union of India 2017 SCC
OnLine Bom 9334
[8] Siddhi Vishwanath Shelar v
State of Maharashtra 2020 SCC OnLine Bom 11672
[9] Justice K. S. Puttaswamy
(Retd.) vs. Union of India (2017) 10 SCC 1
[10] Suchita
Srivastava vs. Chandigarh Administration (2009) 9 SCC 1
[11] Kesavananda Bharati vs.
State of Kerala (1973) 4 SCC 225
[12] Francis Coralie Mullin vs
The Administrator, Union 1981 SCR (2) 516
[13] Justice K. S. Puttaswamy
(Retd.) vs. Union of India (2017) 10 SCC 1
Article Information
CASE COMMENTARY ON X VS. THE PRINCIPAL SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVT. OF NCT OF DELHI & ANR. BY: JOSNA ANN BINO & JENNY ROSE PG
Authors: JOSNA ANN BINO, JENNY ROSE PG
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/05/22
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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