State Must Create Awareness Among Public About Safe Sexual Practises, Ensure Access To Affordable Contraceptives : Supreme Court

The Supreme Court bench comprising Justices D.Y. Chandrachud, A.S. Bopanna and J.B. Pardiwala, on Thursday, pronounced a significant judgement on abortion rights in India, holding that unmarried women were entitled to seek abortion of pregnancy in the term of 20-24 weeks arising out of a consensual relationship. The judgement also held that the meaning of rape must be held to include "marital rape" for the purpose of the Medical Termination of Pregnancy Act and Rules and doctors need not disclose the identity of any minor girl seeking abortion in the the information given to police. 

While discussing the rights concerning reproductive and bodily autonomy of women, the judgement clarified that the term women also included persons who identified as any other gender but required access to reproductive healthcare. The bench opined–

"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."

Following this, the judgement, while affirming the right to reproductive choice as being firmly rooted in a person's bodily autonomy, along with being an essential facet of Article 21 of the Constitution of India, highlighted the positive obligations of the State with regards to this right. The bench noted that the true realisation of reproductive autonomy could only be ensured by State's active participation in the process. The judgement remarked that–

"State has a positive obligation under Article 21 to protect the right to health, and particularly reproductive health of individuals. In terms of reproductive rights and autonomy, the state has to undertake active steps to help increase access to healthcare (including reproductive healthcare such as abortion)."

In accordance with the State's obligations in this regard, the bench directed the State to ensure dissemination of information pertaining to sex education. It opined–

"The state must ensure that information regarding reproduction and safe sexual practices is disseminated to all parts of the population. Further, it must see to it that all segments of society are able to access contraceptives to avoid unintended pregnancies and plan their families. Medical facilities and RMPs must be present in each district and must be affordable to all. The government must ensure that RMPs treat all patients equally and sensitively. Treatment must not be denied on the basis of one's caste or due to other social or economic factors. It is only when these recommendations become a reality that we can say that the right to bodily autonomy and the right to dignity are capable of being realized."

While highlighting the societal barriers to safe access to abortion, the bench remarked–

"True realization of reproductive autonomy is possible only by addressing problems in the societal contexts within which individuals, particularly women, are situated. It is not only social stigma which prevents women from realizing the right to health but also caste and economic location. The cost of an abortion at a private hospital may be prohibitive for those whose monthly salaries are a fraction of that cost. Public hospitals in rural areas are often not equipped with the resources to provide the kind and quality of healthcare that ought to be provided free of cost or at highly subsidized rates. A lack of awareness about the resources that public hospitals offer coupled with the discriminatory attitudes of many health providers only serve to exacerbate this problem."

The court reiterated that the MTP Act recognised the reproductive autonomy of every pregnant woman to choose to terminate her pregnancy. It stated that–

"Implicitly, this right also extended to a right of the pregnant woman to access healthcare facilities to attain the highest standard of sexual and reproductive health. It is meaningless to speak of the latter in the absence of the former. Reproductive health implies that women should have access to safe, effective, and affordable methods of family planning and enabling them to undergo safe pregnancy, if they so choose."

Case Title: X vs Principal Secretary, Health and Family Welfare Department, Govt of NCT Of Delhi, C.A 5802/2022

Citation : 2022 LiveLaw (SC) 809

Click here to read/download the judgment