Constitution vs. criminalization: The question of reproductive justice in India

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On September 29, 2022, the Supreme Court of India (SCt) delivered its judgment in X v. NCT Delhi, a case concerning the abortion rights of unmarried women in India. In its decision, the SCt liberally interpreted the Medical Termination of Pregnancy Act, 1971 (MTPA) to extend its protections to previously excluded individuals (unmarried women and transgender people) and to hold that access to abortion is a constitutionally protected “reproductive right.” Yet, given the details of the court’s decision, are abortion rights in India, in fact, constitutional rights?


The SCt’s rationale in X v. NCT Delhi

X, a 22-year-old unmarried woman, filed a petition before the High Court (HCt) of Delhi to seek termination of her unwanted pregnancy at a gestational age of 23 weeks. She reasoned that her partner refused to marry her at the last stage, and due to the social stigma and harassment attached to unmarried pregnant women in Indian society, she could not carry the pregnancy further. The Delhi HCt dismissed the petition and adopted a literal and restrictive interpretation of the MTPA, holding that it allows abortion only to married women. Subsequently, X appealed to the SCt. Chandrachud J., writing the judgment for the majority, framed the paramount issue: whether the MTPA, read with Medical Termination of Pregnancy Rules, 2003 (MTPR), allows unmarried women to terminate. 

In its decision, the SCt expanded the definition of the category “women,” taking into consideration societal changes in family structures. The SCt referred to Deepika Singh v CAT (2022) to observe that the family may manifest in an atypical approach (like live-in relationships) to allow individuals from non-traditional family structures to “avail of the benefits under the beneficial statutes including MTPA.” The SCt observed that unmarried women are equal to married women and have equal autonomy to make decisions; thus, the gender-equal societal interpretation of the MTPA would allow unmarried women to terminate pregnancies. The SCt expanded the MTPA’s definition of “women” to include individuals other than cisgender women, thereby recognizing transgender and Queer individuals’ right to safe access to abortion.

The SCt based its interpretation of the MTPA on the foundation of constitutional rights, including the right to reproductive autonomy, the right to live a dignified life, the right to equality, and the right to privacy. The SCt held that the reproductive autonomy of the individual includes the “constellation of freedoms and entitlements” to exercise “intimate personal choices” as a “self-governing individual.” Decisional autonomy, the SCt held, is an integral part of the right to privacy that allows individuals to make decisions about intimate relations. Further, the court observed that forcing unwanted pregnancy is not only a violation of bodily autonomy but also an affront to an individual’s dignity. 


Abortion: A constitutional right?

Despite its transformative and progressive judgment on abortion rights, the SCt failed to address a fundamental issue: the criminalization of abortion rights. Abortion in India is criminalized as per the Indian Penal Code. The MTPA is the only statute that provides exemptions from criminalization for terminating a pregnancy. However, the MTPA does not provide for abortion on request, allowing the termination of pregnancy only under certain circumstances. Despite the statute prescribing the acceptable conditions, there is no uniformity among high court decisions: some have allowed termination, and others have blatantly rejected the pleas. 

Under the MTPA, registered medical practitioners (RMPs) are entrusted to serve as gatekeepers for abortion access. They are bestowed with a duty to assess whether the pregnant individual meets the requirements of the MTPA for terminating the pregnancy based on their “actual or reasonable foreseeable environment.” However, RMPs’ decisions to provide or deny abortion services can be motivated by factors unrelated to the pregnant individual’s health and autonomy interests. While RMPs who perform abortions are protected from any criminal liability as long as they comply with the MTPA, those who fail to comply may face prosecution under the Penal Code. In contrast, RMPs who refuse to provide abortions face no repercussions. 

When abortion access is placed within a criminal law framework, it can have a chilling effect on the willingness of RMPs to terminate pregnancies. This reality sets up a conflict between the RMPs’ interests, such as avoiding criminal liability, and those of their patients. Thus, under the MTPA, it is not the pregnant individual who decides on termination; rather, it is the medical practitioner who approves the termination as the final decision bearer. A similarly chilling effect was seen recently in Texas’s abortion law, which prohibits RMPs from performing an abortion if they identify cardiac activity in an embryo—“first detectable heartbeat”—even if it is months before a viable fetus develops. Texas abortion law went a step further when it allowed private parties to bring a lawsuit against abortion clinics and individuals seeking abortion with a reward of $10,000 (8.32 Lakhs INR). 

Research indicates that there are approximately 48.1 million pregnancies each year in India, and approximately one-third of them end in abortion. Shockingly, out of the 12.3 million abortions that take place, a significant 78% of them are deemed illegal merely because they do not comply with the MTPA, even though they pose no threat to safety.

Therefore, abortion is still not a constitutionally protected right because constructing abortion as a “constitutional right” for pregnant individuals would require modifying the provisions of the Penal Code and the MTPA. If abortion were considered a constitutional right under the law, RMPs who did not provide the service when requested would face consequences. Such a law would prioritize the pregnant individual’s choice, and medical reasons would only be considered when the pregnant individual is unable to give consent. Thus, the decision of X placed the so-called abortion right of an unmarried woman in the hands of the abortion provider, the RMPs, and the judges. 

Yet despite the SCt’s failure to address the criminalization of abortion, the ruling is a major milestone in several respects. It has established a novel constitutional framework for reproductive justice and furnished constitutional backing for advocacy efforts in both judicial and non-judicial settings. Moreover, the ruling expanded the unprotected reproductive right (also not a constitutional right) to individuals beyond binary gender definitions. It also extended the right to women who are subjected to sexual violence within their marriages. Thus, the ruling can be called a crucial first step toward achieving reproductive justice in India.