THE CONTEXT: Recently in the historical Judgement, SC axed 51-year-old restriction on the abortion rights of women and upheld that single women can get equal abortion rights. In the Judgement by the Supreme Court bench headed by Justice D.Y. Chandrachud concluded that unmarried women in consensual relationships are also entitled to equal safe and legal abortions. In this write up, we will analyse in detail about the issues related to abortion and marital rape in India.
WHAT WAS THE CASE ABOUT IN THE SUPREME COURT?
- The Court was hearing the case of a 25-year-old single woman whose request to end a pregnancy before 24 weeks was denied by the Delhi High Court.
- The Court ruled that unmarried women should be included by Rule 3B of the MTP Rules, using a “purposive” view of the MTP Act.
KEY HIGHLIGHTS OF THE JUDGEMENT
- The Supreme Court ruled the rights available to married women under the Medical Termination of Pregnancy Act,1971, to abort a foetus will also be available to unmarried ones.
- If Rule 3B(c) is understood as only for married women, it will perpetuate the stereotype that only married women indulge in sexual activities. This is not constitutionally sustainable.
- The bench said the artificial distinction between married and unmarried women cannot be sustained and that women must have the autonomy to have free exercise of these rights.
- While stressing reproductive autonomy is closely linked to bodily autonomy, the Court ruled that the Right to choose contraception, the number of children and whether or not to abort have to be taken without the influence of social factors.
- The consequences of unwanted pregnancy on a woman cannot be undermined, and the health of the foetus depends on the mother’s mental wellbeing.
- The Court held the interpretation of the MTP Act has to reflect the societal realities.
- The bench referred to parliamentary debate statistics on unsafe abortions and to a Global Health Study by the British Medical Journal, which had concluded that 67 per cent of abortions were unsafe.
- It added that denying access to safe abortion will increase people resorting to unsafe abortions.
- Pointing to the abortion rights for rape survivors, the Court said married women may also form part of a class of survivors of sexual assault and rape as it is quite possible that a woman may become pregnant on account of a non-consensual act by the husband.
- In this context, the Court said the meaning of rape must include the meaning of marital rape solely within the meaning of the MTP Act and Rules.
- The Court also held the MTP Act and Protection of Children from Sexual Offences (Pocso) Act has to be read harmoniously and there is no need to disclose the identity of minors under the MTP Act.
- The bench ruled pregnancy is the sole prerogative of a woman and the circumstances may vary for each, and various economic, cultural or social factors play a part in this.
SIGNIFICANCE OF THE JUDGEMENT
RIGHT TO LIFE AND PERSONAL LIBERTY
- According to Justice Chandrachud, an unmarried woman has the same freedom to decide whether or not to have children as a married woman under the reproductive autonomy, dignity, and privacy rights guaranteed by Article 21 of the Constitution.
RIGHT TO EQUALITY
- The Judgement ensured that it was against the Right to equality before the law and equal protection (Article 14) to deny single or unmarried pregnant women thethe Right to abortion.
- It will ensure that single women seeking abortions beyond 20 weeks cannot be turned down on the basis that the statute is too restrictive.
ACKNOWLEDGEMENT OF REPRODUCTIVE AUTONOMY
- The SC stated that reproductive autonomy “means that every pregnant woman has the intrinsic right to choose to undergo or not to undergo an abortion without any approval or authorisation from a third party”. acknowledging this gap and labelling the law as “provider-centric”.
- The Right to bodily autonomy underlies the choice of whether to carry a pregnancy to term or end it prematurely.
DOCTORS NEED NOT REPORT THE IDENTITY OF MINORS SEEKING ABORTION
- The Judgement clarified that the Registered Medical Practitioner, only on request of the minor and the guardian of the minor and does not need to disclose the identity and other personal details of the minor in the information provided under Section 19(1) of the POCSO Act.
DISCOURAGE THE ILLEGAL PRACTICE OF ABORTIONS
- Legalisation of abortions will also discourage the illegal practice of abortions done through untrained, unauthorised paramedics which are hazardous for the health and future fertility of the child bearer.
COVERS THE MARITAL RAPE
- The Judgement ensures that pregnancies rose due to the marital rape are also covered under the Rape definition of MTP exception. This will be significant recognition of marital rape as one of the crimes against women by SC.
THE ABORTION LAWS IN INDIA
How did abortion laws come about in India?
- In the 1960s, in the wake of a high number of induced abortions taking place, the Union government ordered the constitution of the Shantilal Shah Committee to deliberate on the legalisation of abortion in the country.
- In order to reduce maternal mortality owing to unsafe abortions, the Medical Termination of Pregnancy (MTP) Act was brought into force in 1971. This law is an exception to the Indian Penal Code (IPC) provisions of 312 and 313 and sets out the rules of how and when a medical abortion can be carried out.
- Under Section 312 of the IPC, a person who “voluntarily causes a woman with child to miscarry” is liable for punishment, attracting a jail term of up to three years or fine or both, unless it was done in good faith where the purpose was to save the life of the pregnant woman.
- This section effectively makes unconditional abortion illegal in India. Section 313 of the IPC states that a person who causes the miscarriage without the consent of the pregnant woman, whether or not she is in the advanced stages of her pregnancy, shall be punished with life imprisonment or a jail term that could extend to 10 years, as well as a fine.
How has the MTP Act evolved from 1971 to 2021?
- The latest amendment to the MTP Act was made in 2021. Before that new rules were introduced in 2003 to allow the use of the newly discovered abortion medicine misoprostol, to medically terminate a pregnancy up to seven weeks into it. Broader amendments to the original Act were introduced in 2020 and the amended Act came into force in September 2021.
- Under the Medical Termination of Pregnancy (Amendment) Act, 2021, abortion is permitted after medical opinion under stipulated circumstances. The 2021 Act increased the upper limit of the gestation period to which a woman can seek a medical abortion to 24 weeks from 20 weeks permitted in the 1971 Act. But this renewed upper limit can only be exercised in specific cases. Gestational age, calculated in weeks, is the medical term to describe how far along the pregnancy is and is measured from the first day of the woman’s last menstruation or period.
THE MEDICAL TERMINATION OF PREGNANCY (AMENDMENT) ACT, 2021
Under the 2021 Act, medical termination of pregnancy is permitted if it is backed by medical opinion and is being sought for at least one of the following reasons —
- If the continuation of the pregnancy would involve a risk to the life of the pregnant woman
- If its continuation would result in grave injury to the woman’s physical or mental health (if the pregnancy is a result of rape or failure of contraceptive used by the pregnant woman or her partner to limit the number of children or to prevent pregnancy, the anguish caused by its continuation would be considered to be a grave injury to the mental health of the pregnant woman)
- In the case of a substantial risk that if the child was born, it would suffer from serious physical or mental abnormality
The pregnancy can be terminated upto 24 weeks of gestational age after the opinion of two registered medical practitioners under these conditions —
- If the woman is either a survivor of sexual assault or rape or incest.
- If she is a minor.
- If her marital status has changed during the ongoing pregnancy (i.e. either widowhood or divorce).
- If she has major physical disabilities or is mentally ill.
- On the grounds of foetal malformation incompatible with life or if the child is born, it would be seriously handicapped.
- If the woman is in humanitarian settings or disaster, or emergency situations as declared by the government.
- Besides, suppose the pregnancy has to be terminated beyond the 24-week gestational age. In that case, it can only be done on the grounds of foetal abnormalities if a four-member Medical Board, as set up in each State under the Act, gives permission to do so.
- The law, notwithstanding any of the above conditions, also provides that where it is immediately necessary to save the life of the pregnant woman, abortion can be carried out at any time by a single registered medical practitioner.
- Under the 2021 Act, Unmarried women can also access abortion under the above-mentioned conditions, because it does not mention the requirement of spousal consent. If the woman is a minor, however, the consent of a guardian is required.
IS TERMINATING A PREGNANCY A CRIMINAL OFFENCE IN INDIA?
- Voluntarily terminating a pregnancy is a criminal offence under the Indian Penal Code, 1860 (IPC). The Medical Termination of Pregnancy Act of 1971 authorizes medical doctors (with specific specialization) to abort a pregnancy on certain grounds. Pregnancy can be terminated at any time up to 12 weeks if one doctor agrees, and up to 20 weeks if two doctors agree. Only where the pregnancy’s continuation will endanger the pregnant woman’s life, cause grave harm to her mental or physical health (including rape and refusal to utilize birth control), or result in foetal abnormalities is it permissible to terminate the pregnancy. Termination is also permitted at any time during the pregnancy if it is necessary to save the life of the woman concerned.
- MTPA 2021 alters the MTPA 1971 to raise the upper limit for abortion from 20 to 24 weeks for certain types of women, removes the limit in cases of significant foetal abnormalities, and establishes state-level Medical Boards. It also adds that as medical technology advances, the maximum limit for terminating pregnancies may be raised, particularly for vulnerable women. According to Bill’s Statement of Objects and Reasons, multiple cases have been brought in the Supreme Court and different High Courts requesting authorization to terminate pregnancies at stages beyond the Act’s 20-week restriction based on foetal abnormalities or pregnancies in cases of rape.
ISSUES IN THE PRESENT LAW
- The MTP Act, first enacted in 1971 and then amended in 2021, certainly makes ‘medical termination of pregnancy legal in India under specific conditions. However, this Act is framed from a legal standpoint to primarily protect medical practitioners because under the Indian Penal Code, “induced miscarriage” is a criminal offence.
- This premise points to a lack of choice and bodily autonomy of women and rests the decision of abortion solely on the doctor’s opinion. The MTP Act also only mentions ‘pregnant woman’, thus failing to recognise that transgender persons and others who do not identify as women can become pregnant.
- As the law does not permit abortion at will, critics say that it pushes women to access illicit abortions under unsafe conditions. Statistics put the annual number of unsafe and illegal abortions performed in India at 8,00,000, many of them resulting in maternal mortality.
- The acceptance of abortion in Indian society is situated in the context of population control and family planning. But, most importantly, after more than 50 years of the MTP Act, women and transgender persons face major obstacles in accessing safe abortion care.
These are seven examples:
- They may not even be aware that abortion is legal or know where to obtain one safely;
- Since the MTP Act does not recognise abortion as a choice, they need the approval of medical professionals even in the first few weeks of the pregnancy;
- Unmarried and transgender people continue to face stigma and can be turned away from health facilities, forcing them to resort to unsafe care;
- Fourth, mandatory reporting requirements under the Protection of Children from Sexual Offences Bill (POCSO), 2011 law against child sexual offences, impact privacy and hinder access of adolescents to safe abortion services;
- Many are still coerced into agreeing to a permanent or long-term contraceptive method as a prerequisite for getting abortion services;
- Healthcare providers may impose their own morality by insisting on ‘husbands’ or ‘parental’ consent for abortion. Even women seeking abortion care in health facilities are often mistreated and not provided medications for pain relief;
- Despite laws prohibiting sex determination, the illegal practice persists. The mushrooming of unregulated ultrasound clinics in India continues to facilitate the illegal practice of sex determination, resulting in unsafe abortions and female foeticide.
JUDICIAL INTERVENTIONS IN CASES OF ABORTIONS
- In the landmark 2017 Right to Privacy judgement in Justice K.S. Puttaswamy v. Union of India and others, the Supreme Court had held that the decision by a pregnant person on whether to continue a pregnancy or not is part of such a person’s Right to privacy as well and, therefore, the Right to life and personal liberty under Article 21 of the Constitution.
- Several women annually approach the apex court and High Courts when medical boards reject their application to access MTP beyond the gestational upper limit (now 24 weeks), seeking permission to abort a pregnancy, mostly in cases where it is a result of sexual assault or when there is a foetal abnormality.
WHAT ARE THE CRITICISMS AGAINST THE ABORTION LAW IN INDIA?
- According to a 2018 study in the Lancet, 15.6 million abortions were accessed every year in India as of 2015. The MTP Act requires abortion to be performed only by doctors with specialisation in gynaecology or obstetrics. However, the Ministry of Health and Family Welfare’s 2019-20 report on Rural Health Statistics indicates that there is a 70% shortage of obstetrician-gynaecologists in rural India.
- As the law does not permit abortion at will, critics say that it pushes women to access illicit abortions under unsafe conditions. Statistics put the annual number of unsafe and illegal abortions performed in India at 8,00,000, many of them resulting in maternal mortality.
WHAT IS MARITAL RAPE?
MARITAL RAPE – DEFINITION
“Marital rape” or “spousal rape” can be defined as having sexual intercourse with one’s spouse without the latter’s assent or consent forcefully. It is unwanted sexual intercourse that usually involves a man using force, the threat of force or physical violence on his wife when she does not give consent to have it.
TYPES OF MARITAL RAPE
Battering rape
- In this type of rape, women have to undergo both physical and sexual violence in their marital relationship.
- Some are battered during the sexual violence, or the rape may follow a physically violent episode where the husband wants to make up and coerces his wife to have sex against her will.
- It is the most common form of marital rape found in India and a majority of marital rapes fall in this category.
- More than 45% of marital rapes in India are battering rapes.
Force-only rape
- This type of marital rape involves the usage of necessary force by the husband to coerce their wives into sexual intercourse.
- These assaults are typically inflicted on spouses (wives) who have refused sexual intercourse.
- It does not involve battering or physical violence.
Obsessive rape/sadistic rape
- This type of marital rape involves torture or perverse sexual acts.
- It tends to be very violent and may result in physical injuries.
WHAT HAS THE COURT REMARKED ON MARITAL RAPE
- According to the Court, a husband’s act of sexual assault or rape against his wife is included in the definition of “sexual assault” or “rape” in Rule 3B(a).
- Marital rape must therefore be included in the definition of rape for the sole purpose of the MTP Act and any rules and regulations made thereunder.
- Any alternative interpretation would force a woman to carry a child and raise it with a partner who abuses her physically and psychologically.
WHY IS MODERN INDIA STILL NOT ACCEPTING MARITAL RAPE AS A RAPE?
DEFINITION
- The definition of rape codified in Section 375 of the Indian Penal Code (IPC) includes all forms of sexual assault involving non-consensual intercourse with a woman.
NON-CRIMINALIZATION
- Non-Criminalization of marital rape in India emanates from Exception 2 to Section 375.
EXEMPTION
- Section 375 defines rape and lists seven notions of consent which, if vitiated, would constitute the offence of rape by a man. However, the provision contains a crucial exemption, Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.
MARRIAGE AS PERPETUAL CONSENT
- As per current law, a wife is presumed to deliver perpetual consent to have sex with her husband after entering marital relations. The concept of marital rape in India is the epitome of what we call an “implied consent”. Marriage between a man and a woman here implies that both have consented to sexual intercourse, and it cannot be otherwise.
LEGAL PROVISIONS FOR MARITAL RAPE IN INDIA
- As marital rape in India is not an offence, there is no specific legal provision in India to deal with it. It is entirely dependent on the understanding of courts how they interpret the existing laws to counter this social malaise.
- Under Section 375 of the Indian Penal Code (IPC),1860 which deals with “rape”, “marital rape” is defined as an exceptional clause where it is said – “sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape.” The Indian judiciary has raised the age from 15 to 18. Thus, marital rape is viewed as rape only when the spouse is below the age of 18 years and it is not a crime when the wife is above this age.
- Under Section 376 of the Indian Penal Code (IPC) which has provisions for punishment for rape, it is said that those who commit crimes such as rape should be punished with not less than 7 years reaching up to 10 years or life imprisonment which may often include fine.
- However, if the lady raped is a man’s own particular spouse and is not under 12 years old, then he may be detained for a term which may reach out to 2 years with a fine or with both.
- This shows that even if there is a provision for punishment for marital rape in Indian law, it is milder as compared to other rape cases.
- As per the provisions of the Protection of Women from Domestic Violence Act, 2005 (POCSO Act), marital rape is a type of domestic or local violence. Under this Act, a lady can go to Court and get a legal partition from her husband for marital rape.
- However, women in India can file cases against marital rape on the grounds of cruelty or domestic violence and obtain judicial separation from their husbands (divorce).
- In 1993, it was declared that any violence against women, including marital rape, was recognized as violative of women’s Fundamental Human Rights provided to her under international laws in the U.N Declaration on Elimination of Violence Against Women (DEVAW).
CRIMINALIZING OF MARITAL RAPE: AN ANALYSIS
ARGUMENTS FOR
1. Shortcomings in existing laws:
- It is often said that the Domestic Violence Act, 2005 deals with marital rape in India and thus there is no need to criminalize it under separate law.
- However, the Domestic Violence Act, 2005 is considered to be a civil law by the courts, and thus the accused can get away without any jail term.
- Another problem is that while the term “sexual abuse” is mentioned, the act doesn’t explicitly define “rape” as is defined in section 375 of the IPC.
- Thus, the current law has no provision if a woman wants to file a criminal case against her husband if her husband is raping her.
2. Protection of fundamental rights of women:
- The criminalization of marital rape would help protect the basic rights of women such as the Right to live with human dignity, the Right to sexual privacy, the Right to bodily self-determination and the Right to equality.
- The UN Committee on Elimination of Discrimination against Women had twice (in 2007 and 2014) urged India to criminalise marital rape on similar grounds. It views marital rape as a sort of discrimination against women that violates the principles of equality of rights and respect for human dignity.
ARGUMENTS AGAINST
1. Potential misuse of the law :
- There is a high possibility of misuse of this law since it is related to a very personal and sensitive subject like sex between a married couple.
- Records say that around 85% of dowry cases turn out to be false while a majority of cases registered under 498A are false or a mistake of fact or law or a civil dispute.
- Given such a state of affairs, making marital rape a criminal offence would prove to be a disaster harming social harmony.
2. Burden of proof:
- The concept of burden of proof is a complex issue.
- When marital rape would be considered a crime, there will be a burden either on the wife to prove the offence or the husband to prove himself innocent, and therefore it will be very difficult to apply.
3. Threat to the institution of marriage:
- Marriage is a concept that is built around the idea of love, trust and respect. However, many argue that criminalizing marital rape will make the parties in a relationship try to be “legally careful” in the normal course of affairs, fearing the occurrence of such situations or coming up of such allegations.
- Similarly, if wives accuse husbands falsely of committing such offences this may lead to the breakdown of the institution of marriage.
4. Against privacy:
- Some argue that making marital rape a crime would allow the State to interfere in the personal affairs of individuals.
- This will be a violation of the Right to privacy inherent in the Right to life guaranteed under Article 21 in the Indian Constitution.
THE WAY FORWARD
AWARENESS GENERATION
- It is essential for healthcare workers, dais, and Asha workers to “spread the message to all women across the board about availability of accredited termination clinics both in the government and in the private sector.
BROADER VIEW
- Bodily autonomy and reproductive rights must be viewed from three lenses — legal, medical, and social.
- Only when women and non-binary pregnant people enjoy absolute autonomy over their own bodies by these parameters, can one claim that India is showing the way to the C
HOLISTIC APPROACH
- We should strive for inclusivity, complete bodily autonomy, and reproductive equity. The government needs to ensure that all norms and standardised protocols in clinical practice to facilitate abortions are followed in health care institutions across the country.
- Along with that, the question of abortion needs to be decided on the basis of human rights, the principles of solid science, and in step with advancements in technology.
FILLING THE GAPS IN EXISTING LAWS
- Marital rape is a complex issue that needs a deep and detailed discussion. Criminalizing marital rape will not merely help. Rather there is a need for rectifying and filling the gaps in existing laws and doing away with archaic ones that tend to function against the well-being of women and the society as a whole. Public consultation and discussion with all the stakeholders may be the way forward.
THE CONCLUSION: The decision of whether or not to bear a child is central to a woman’s life, to her well-being and dignity. She ought to be the one deciding it for herself. When government superintends that decision for her, she is being treated as less than a fully adult human accountable for her own choices. We need to bestow much greater support to women who may want to conceive and raise their children, but opting out of it for financial, psychological, health, or relationship reasons Criminalising abortion does not stop abortions, it just makes abortion more unsafe.
QUESTION FOR MAINS EXAMINATION:
Q1 . India’s abortion laws are one of the most progressive across the world. In light of the recent supreme court judgement, critically analyse the abortion laws in India.
Q2. While most of the developed world has penalised marital rape, surprisingly, there is no law to protect married women against marital rape in India”. Discuss the need for a law against marital rape in India and the challenges associated while legislating such a law.
