Yes, you read it right! Now the honorable Supreme Court of India in the recent landmark judgment has allowed every woman to have safe and legal abortion till the 24 weeks of pregnancy without any discrimination. To know more about it lets first learn about the history of legal abortion in India. In India, legal abortion is regulated by the law called Medical Termination Act, of 1971 (MTP Act, 1971). It was passed for safe and legal abortion by women and to empower them. At first, it was only applicable to married women and unmarried women were not covered under this act. The gestational age limit allowed was 20 weeks for all women i.e., women could legally undergo abortion till the 20 weeks of pregnancy. Also, for abortion, the opinion of 1 Registered Medical Practitioner was necessary if the abortion is being done till 12 weeks and the opinion of 2 Registered Medical Practitioners was necessary if it is being done till 20 weeks of pregnancy. Due to these stricter norms and the need for an hour the Medical Termination Act, of 1971 was amended in 2021 which also covered unmarried women to perform abortions legally. The amendment extended the pregnancy week limit for special classes mentioned in rule 3B like rape victims till 24 weeks and beyond 24 weeks where the case is of substantial fetal abnormalities. Also for abortion till 20 weeks the opinion of the Registered Medical Practitioner required was lowered to 1 and for abortion between 20 weeks to 24 weeks the opinion of 2 Registered Medical Practitioners is necessary. Also, if the abortion is being done after 24 weeks of pregnancy as allowed for fetal abnormalities cases the opinion of the Medical Board was made compulsory.
But rule 3B was discriminatory as it only includes rape victims, minors, those pregnant ladies who underwent a marital status change, and mentally ill women. It discriminates between married women and unmarried women as the right to have a legal abortion is only allowed to married women and not to unmarried women who can only perform abortions till 20 weeks of pregnancy. Article 14, which guarantees equality, is violated by this.
The honorable Supreme Court noticed that and held rule 3B of the Medical Termination of Pregnancy (Amendment) Act, 2021 is artificial and unconstitutional. The Supreme Court found that rule 3B was against the dignity of women. Law cannot be static; it must change as time changes. There is freedom of choice for the woman whether she wants to continue the pregnancy or adopt for abortion. The top court said that considering the woman’s marital status for abortion is arbitrary and should not deprive unmarried women to have a safe and legal abortion. Every woman has the right to personal liberty as mentioned under the constitution’s article 21, so the right to have a safe and legal abortion cannot be denied just because the woman is unmarried and had consensual sex.
The Supreme Court bench comprising justice D. Y. Chandrachud, Justice A. S. Bopanna, and Justice J. B. Pardiwala delivered this historic and landmark judgment to the appeal filed against the Delhi High Court’s judgment which denied the unmarried pregnant women to have a legal abortion. The judgment has now allowed every woman to have a safe and legal abortion up until 24 weeks of pregnancy regardless of their marital status and irrespective of whether they had consensual sex or not. But apart from this one more historic move by Supreme Court was included in the judgment was that the meaning of rape also included marital rape under the Medical Termination of Pregnancy Act (MTP Act). This is the first time the Supreme Court has included Marital Rape under any law.
According to me, this judgment is very significant as it not only provides equal rights to all women but also safeguards the woman from adopting unsafe methods of pregnancy termination. This judgment is very important regarding the health and dignity of women. Earlier due to the inability of having legal termination many unmarried and young girls used to adopt illegal and unsafe terminations. But due to this judgment now they can opt for legal and safe terminations with dignity and respect. This is one of the significant steps to breaking the traditional stigmas relating to women and empowering them.
Author’s Name: Shahid Khalid Bhendwade (Government Law College, Mumbai)