TW: Mention of sexual assault, rape
On Thursday, September 29, the apex court declared that denying anyone the right to abortion is “unconstitutional”.
The bench, led by Justice D. Y. Chandrachud, and comprising A. S. Bopanna and J. B. Pardiwal, which was interpreting the 1971 MTP (Medical Termination of Pregnancy) Act, noted that women are now “entitled to safe and legal abortion till 24 weeks of pregnancy”.
The court observed that the “rights of reproductive autonomy, dignity and privacy under Article 21 of the [Indian] 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.”
This observation is pathbreaking in more ways than one, as it not only acknowledges the right of women, irrespective of their marital relationship, to their own bodies but also strikes a blow at the heteropatriarchal notions attached to womanhood.
A BBC report accurately reads the court’s findings. It says, “under this [amended abortion] law, the meaning of rape would include sexual assault by husbands.”
Here’s what the court underlined in its own words: “Married women may also form the part of the class of survivors of sexual assault or rape. The ordinary meaning of the word rape is sexual intercourse [with] a person without consent or against their will. Regardless of whether such forced intercourse occurs in the context of matrimony, a woman may become pregnant as a result of non-consensual sexual intercourse performed upon her by her husband.”
While as of now the definition of rape doesn’t include non-consensual intercourse between married adults, one remains hopeful of a judgment that may detach the notion of complete ownership of a woman’s body by a man in a heteropatriarchal marital setup.
The court further observes that the “law in modern times is shedding the notion that marriage is a precondition for the rights of persons. The MTP [Act] must consider the realities of today and must not be restricted by old norms. The law must not remain static and must keep in mind changing social realities.”
At the outset of the verdict, the bench also conceived abortion as a gender-neutral healthcare right. “Before we embark upon a discussion on the law and its application, it must be mentioned that we use the term ‘woman’ in this judgment as including persons other than cis-gender women who may require access to safe medical termination of their pregnancies,” said Justice D Y Chandrachud, on behalf of the bench.
While the “social realities” have always been dynamic, it’s heartening to see that the law has finally decided to match up to them. The fact that SC took notice and delivered a logical judgment is at once a no-brainer and thrilling. One wishes that the apex court continues to uphold the constitutionality of several rights in a similar fashion.