The Supreme Court's recent verdict holding that unmarried women cannot be denied medical termination of pregnancy marks a watershed moment in the fight for the bodily autonomy of women.
The decision underscored that women's reproductive choices cannot be separated from their personal liberty guaranteed under Article 21 of the Constitution.
The order, which came after a 2021 amendment to abortion laws, was passed on the plea of an unmarried woman wanting to terminate her pregnancy.
She had initially moved the Delhi High Court, but was denied relief as she did not fall in the eligible category. Consequently, she knocked on the doors of the Supreme Court, which permitted her to go through with the abortion.
Bar & Bench spoke to the petitioner’s lawyer Dr Amit Mishra, who underlined the significance of the verdict, in the context of similarly placed unmarried women being compelled to undergo unsafe abortions for lack of choice.
Edited excerpts from the interview follow.
What does the law say on termination of pregnancy for unmarried women?
The law [Medical Termination of Pregnancy (Amendment) Act, 2021 (MTP Act] permits both married and unmarried women to terminate pregnancy of up to 20 weeks. But Section 3(2)(i) read with Rule 3(b) permits only certain categories of women to terminate pregnancy of up to 24 weeks. The problem lies here. Section 3(2)(i) read with Rule 3(b) excludes unmarried women. The seven eligible categories include survivors of sexual assault, minors, physically disabled women and others.
Importantly, in the 2021 amendment to the MTP Act, Parliament substituted the phrase “married women or her husband” in Explanation 1 of Section 3 of the Act with “any woman or partner”. Therefore, it indicates that single women are also included and the same right has been given to them.
After the amendment, there is no difference between married or unmarried women.
How did the case come to you? What were the arguments you made before the High Court?
When the case came to me, I saw that the woman trusted someone, but her faith was breached, and she was at the last stage - 23 weeks and 1 day - of the pregnancy. It was a matured stage of pregnancy and she did not fall in the category eligible for medical termination. Her only fault was having trusted someone, and today, the law did not support her.
Divorcees, widows and other categories of women are allowed to terminate pregnancy of up to 24 weeks but not unmarried women. So there was a clear violation of fundamental rights under Article 14 of the Constitution.
I told my team that we had very less time and needed the order (from the Court) before 24 weeks. We sat the entire night and drafted the petition on July 11 before moving the Delhi High Court the next day.
We filed the petition before the High Court in the morning, but getting the matter listed was crucial. So I appeared before the Chief Justice of the High Court and mentioned the matter and requested it to be kept the same day.
We were given the date of July 15, when I made submissions. The Court, however, was not convinced. In its view, she did not fall in the eligible category. I mentioned that the law had been changed to include the words "any woman and her partner" and also said that the Rules could not supersede the main Act.
I showed an important judgment of the Bombay High Court - XYZ v. State of Maharashtra. It is a wonderful judgment that had allowed an 18-year-old to terminate the pregnancy of 26 weeks on the same facts - being major, unmarried and on the ground that grave injury will be caused to her mental and physical health.
I had approached the Delhi High Court on the grounds that continuing the pregnancy will cause grave injury to the physical and mental health of the petitioner. She has five siblings, her parents are agriculturists and she herself is a graduate and cannot nurture the child at this stage. The petitioner was determined not to continue with the pregnancy, but I couldn't convince the Court on these grounds.
The Delhi High Court suggested that she deliver the child, give it up for adoption and even suggested paying from their own pockets. Even Senior Advocate Kapil Sibal, who was in court, was asked for his opinion. He said that the child should not aborted at this stage.
I said that if we look at the overall scheme of the MTP Act, the interest of the woman is on a higher pedestal than the unborn child because if we see Section 3 (of the MTP Act) it mentions physical and mental health of the woman thrice. So we are talking about the rights of women and not the unborn child.
Moreover, the child is not be viable before 28 weeks as per medical standards. So there is no harm in allowing the termination. Is compelling the person, forcing them to continue with the pregnancy without their desire not a violation of their bodily integrity? Personal autonomy? These comprise the core of Article 21 of the Constitution of India.
Though a notice was issued, the petition was dismissed eventually.
How would you explain situation before the Supreme Court order, in terms of the stress your client had to go through?
I felt bad and informed the petitioner. She was in a very bad condition at that time. She was in deep shock and disturbed and told me the she did not want to live. She was under severe depression and trauma. I convinced her somehow and pacified her to give me some time.
What was her fault in all this? Pregnancy is a natural phenomenon arising out of love. If there is a wanted pregnancy, both partners, married or unmarried, share the responsibility equally. But when there is an unwanted pregnancy, the burden falls on the woman.
The problem occurs when she is unmarried. Where would she go? The partner has refused. Society will not accept her. The child will be labelled an illegitimate one and she will not be able to get married in future. It is pure injustice.
I told her I will try to get relief from the Supreme Court. The time was very less. On July 18, she had completed 24 weeks of pregnancy.
After being denied relief by the Delhi High Court, you had to move the Supreme Court quickly thereafter. How did you strategize, given that time is of the essence in such cases?
In the Supreme Court, it is difficult to get a matter listed. I did all the clerical work and sought the hearing, saying it was an urgent matter and my petition will be infructuous if not heard in time.
I appeared before Chief Justice of India NV Ramana and mentioned the matter and requested it to be listed on the same day. The CJI said they will consider it.
I again appeared on the next day before the CJI and mentioned the matter. The pregnancy had now become 24 weeks and 2 days. It had passed the deadline.
Later, the matter was listed before a Bench comprising Justices DY Chandrachud, Surya Kant and AS Bopanna.
Believe me, I prepared my best line of arguments the entire night as I was going to appear before such a big bench. I though that if one line of argument does not work, I should have a second line of argument, if not a third.
I took out constitutional judgments on personal liberty - Suchita Srivastava v. Chandigarh Administration, Justice KS Puttaswamy (Retd.) and Anr v. Union of India and Ors, XYZ v. State of Maharashtra and other judgments where termination of pregnancy was allowed.
Somehow I convinced myself that I will convince the Court.
It is a landmark order - a precedent in the favour of unmarried women. It is good, as our country has already been facing illegal and unsafe abortions at small clinics, due to which complications are increasing, maternal mortality rate is rising. When law does not support them, where will they go? State does not take the responsibility.
It is their body. Why is the State interfering when they do not want to have the child? They (women) are in a better position to decide whether they want to carry the child or not.
She is fine and happy after learning about the Supreme Court order. And not only for her, but the law changed for the whole country.
I can’t express in words the feeling I had after I saw her following the Supreme Court verdict. I am speechless.
Is the Supreme Court verdict the first of its kind post the amendment?
The amendment was made in 2021 and this was the first case after that. The loophole has been there, actually. The Supreme Court has also said that in such a scenario, there should be a purposive interpretation of the Act instead of a literal one. If the category of unmarried women is not there, it does not mean she should not get the benefit and when the main Section talks about woman or a partner why should she be deprived from the benefit on the ground that she is unmarried?
What will be the impact?
After this, unmarried women all over the country can get the benefit and they need not go for unsafe abortions and risk their health.
Another important factor is that the law permits a rape survivor to terminate pregnancy. There was a choice with the petitioner of filing an FIR against the partner, but she acted bona fide and moved court acknowledging that the pregnancy was out of a consensual relationship.
While some women have access to lawyers and courts, a large section does not have the wherewithal. Your thoughts?
That’s why women resort to taking pills, going to quacks, centres that carry out unsafe abortions that could even result in death. The United Nations Population Fund (UNFPA)'s State of the World Population Report 2022 says close to 8 women die in India on a daily basis due to unsafe and illegal abortions.
This is the real picture.
It is a landmark order passed by the Supreme Court. It will help all unmarried women having an unwanted pregnancy. It will take some time, but people will learn about the new law and their rights, and the government should spread awareness.