X versus THE PRINCIPAL SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVT. OF NCT OF DELHI & ANR

[2022] 7 S.C.R.

THE PRINCIPAL SECRETARY, HEALTH AND FAMILYWELFARE DEPARTMENT, GOVT. OF NCT OF DELHI & ANR.

B(Civil Appeal No. 5802 of 2022)

SEPTEMBER 29, 2022

[DR. DHANANJAYA Y. CHANDRACHUD,A. S. BOPANNA AND J. B. PARDIWALA, JJ.]

Medical Termination of Pregnancy Act 1971(Amended by theCMedical Termination of Pregnancy (Amendment) Act,2021) – s.3(2)(b) – Medical Termination of Pregnancy Rules,2003 (Amendedby Medical Termination of Pregnancy (Amendment) Rules, 2021) –Rule 3B – Constitution of India – Article 14, 21 – The Interpretationof Rule 3B of the MTP Rules – Unmarried or single women fallDwithin the ambit of Rule 3B – Purpose and object – Right toreproductive autonomy – Right to dignity – Appellant instituted awrit petition before the High Court and submitted that appellantwas in consensual relationship and had become pregnant – Asher partner had refused to marry her and in absence of source oflivelihood, she would be unable to nurture child as an unmarriedEmother – Appellant also instituted Criminal MiscellaneousApplication for grant of interim relief to terminate her pregnancyduring the pendency of the Writ Petition – High Court declined togrant relief sought and observed that Section 3(2)(b) of the MTPAct was inapplicable and since the appellant, being an unmarriedFwoman, was not covered by any of the sub-clauses of Rule 3B ofthe MTP Rules – Appeal was filed before the Supreme Court againstthe order of High Court and Supreme Court by ad interim ordermodified the order of the High court and permitted the appellant toterminate her pregnancy – As the case involved substantial questionof law the writ petition before the High Court was transferred toGSupreme Court – The issue involved is the interpretation of Rule 3Bof the MTP Rules – Held: In s.3 of the MTP Amendment Act thewords used are “Any women or her partner”, by eliminating thewords (which existed before the amendment) “married women orher husband” the legislature intended to clarify the scope of s.3 –HFurther held, the meaning of the words “sexual assault” or “rape”

in Rule 3B(a) includes husband’s act of sexual assault or rape(Marital rape) committed on his wife but solely for the purposes ofthe MTP Act – Unmarried women have right to access safe andlegal abortions between twenty and twenty-four weeks, if they facea change in their material circumstances, similar to married women

– Distinction between married and unmarried women does not bearnexus to the basic purpose and object which is sought to be achievedby parliament – In view of the object, there is no rationale forexcluding unmarried or single women (who face change in theirmaterial circumstances) from the ambit of Rule 3B.

Medical Termination of Pregnancy Act 1971(Amended by theMedical Termination of Pregnancy (Amendment) Act,2021 ) – Objectand purpose – Discussed.

Medical Termination of Pregnancy Rules,2003 (Amended byMedical Termination of Pregnancy (Amendment) Rules, 2021) – Rule3B – Purposive Interpretation of.

Disposing of the appeal, the Court

HELD:1. Despite the enactment of the MTP Act, numberof hurdles continue to prevent full access to safe and legalabortions, pushing women to avail of clandestine, unsafe abortions.These barriers include insufficient infrastructural facilities, lackof awareness, social stigma, and failure to ensure confidentialcare. In some situations, unmarried women face particular barriersdue to gender stereotypes about women’s sexual autonomyoutside marriage. These barriers are serious impediment anddeter single women from seeking safe and legal abortions. Suchbarriers may contribute to delay in accessing abortion servicesor complete denial of such services, consequently negatingwomen’s right to reproductive autonomy. [Para 18][709-B-C]2. Although the actions of RMPs done in good faith underthe MTP Act are protected under Section 8, the spectre ofcriminalization casts chilling effect on them. The fear faced byRMPs of prosecution under the penal provisions often leads tounnecessary delays. It is common yet lamentable practice forRMPs to insist on compliance with extra-legal conditions suchas consent from the woman’s family, documentary proofs, or

Ajudicial authorisation. If the woman fails to comply with theseadditional requirements, RMPs frequently decline to provide theirservices in conducting legal abortions. These extra-legalrequirements have no basis in law. As noted above, it is only thewoman’s consent (or her guardian’s consent if she is minor ormentally ill) which is material. RMPs must refrain from imposingBextra-legal conditions on women seeking to terminate theirpregnancy in accordance with the law. They need only ensurethat the provisions of the MTP Act (along with the accompanyingrules and regulations) are complied with. [Paras 22, 23][710-G;711-A-C]

C3.An RMP’s decision to provide medical termination of apregnancy is also influenced by social stigma surroundingunmarried women and pre-marital sex, gender stereotypes aboutwomen taking on the mantle of motherhood, and the role ofwomen in society. The social stigma that women face for engagingDin pre-marital sexual relations prevents them from realizing theirright to reproductive health in variety of ways. They haveinsufficient or no access to knowledge about their own bodiesdue to lack of sexual health education, their access tocontraceptives is limited, and they are frequently unable toapproach healthcare providers and consult them with respect toEtheir reproductive health. Consequently, unmarried and singlewomen face additional obstacles. [Paras 26, 28][712-C-D; 713-A-B]

4. The question that arises is whether Rule 3B includesunmarried women, single women, or women without partnerFunder its ambit. The answer may be discerned by imparting apurposive interpretation to Rule 3B. The cardinal principle ofthe construction of statutes is to identify the intention of thelegislature and the true legal meaning of the enactment. Theintention of the legislature is derived by considering the meaningGof the words used in the statute, with view to understanding thepurpose or object of the enactment, the mischief, and itscorresponding remedy that the enactment is designed to actualise.[Paras 30, 31][713-E-F]

5. While much of law’s benefits were (and indeed are) rootedHin the institution of marriage, the law in modern times is shedding

the notion that marriage is precondition to the rights ofindividuals (alone or in relation to one another). Changing socialmores must be borne in mind when interpreting the provisionsof an enactment to further its object and purpose. In Navtej SinghJohar, this Court emphasized the transformative nature of ourConstitution. Transformative constitutionalism promotes andengenders societal change by ensuring that every individual iscapable of enjoying the life and liberties guaranteed under theConstitution. This Court observed that transformativeconstitutionalism places duty on the judiciary to “ensure anduphold the supremacy of the Constitution, while at the same timeensuring that sense of transformation is ushered constantly andendlessly in the society by interpreting and enforcing theConstitution as well as other provisions of law in consonancewith the avowed object. [Paras 38, 40][718-D-E; 719-C-D]6. The MTP Amendment Act 2021 also extended the benefitof the legal presumption of grave injury to the mental health ofa woman on account of the failure of contraception, to all womenand not just married women. In the unamended MTP Act,Explanation II provided that the anguish caused by pregnancyresulting from failure of any device or method used by any“married woman or her husband” for the purpose of limiting thenumber of children may be presumed to constitute grave injuryto the mental health of the woman. After the MTP AmendmentAct 2021, Explanation I provides that the anguish caused by apregnancy (up to twenty weeks) arising from failure of acontraceptive device used by “any woman or her partner” eitherfor limiting the number of children or for preventing pregnancycan be presumed to constitute grave injury to woman’s mentalhealth. By eliminating the word “married woman or her husband”from the scheme of the MTP Act, the legislature intended toclarify the scope of Section 3 and bring pregnancies which occuroutside the institution of marriage within the protective umbrellaof the law. [Para 53][724-C-E]

7. The unamended MTP Act of 1971 was largely concernedwith “married women”, as evident from paragraph 1 of itsStatement of Objects and Reasons, which stated that most of the

Awomen seeking abortions were married, and thus “under noparticular necessity to conceal their pregnancy.” Significantly, the2021 Statement of Objects and Reasons does not make adistinction between married and unmarried women. Rather, allwomen are entitled to the benefit of safe and legal abortions.[Para 56][725-D]B

8 .The expression “mental health” has wide connotationand means much more than the absence of mental impairmentor mental illness. The World Health Organization defines mentalhealth as state of “mental well-being that enables people tocope with the stresses of life, realize their abilities, learn wellCand work well, and contribute to their community.” Thedetermination of the status of one’s mental health is located inone’s self and experiences within one’s environment and socialcontext. Our understanding of the term mental health cannot beconfined to medical terms or medical language, but should beDunderstood in common parlance. The MTP Act itself recognizesthe need to look at the surrounding environment of the womanwhen interpreting injury to her health. Section 3(3) states thatwhile interpreting “grave injury to her physical or mental health”,account may be taken of the pregnant woman’s actual orreasonably foreseeable environment. [Para 64][729-B-D]E

9. Notwithstanding Exception 2 to Section 375 of the IPC,the meaning of the words “sexual assault” or “rape” in Rule3B(a) includes husband’s act of sexual assault or rape committedon his wife. The meaning of rape must therefore be understoodas including marital rape, solely for the purposes of the MTP ActFand any rules and regulations framed thereunder. Any otherinterpretation would have the effect of compelling woman togive birth to and raise child with partner who inflicts mentaland physical harm upon her. [Para 75][733-A-B]

10. In order to avail the benefit of Rule 3B(a), the womanGneed not necessarily seek recourse to formal legal proceedingsto prove the factum of sexual assault, rape or incest. NeitherExplanation 2 to Section 3(2) nor Rule 3B(a) require that theoffender be convicted under the IPC or any other criminal law

DELHI

for the time being in force before the pregnant woman can accessan abortion. Further, there is no requirement that an FIR mustbe registered or the allegation of rape must be proved in courtof law or some other forum before it can be considered true forthe purposes of the MTP Act. Such requirement would becontrary to the object and purpose of the MTP Act. In fact,Explanation 2 triggers the legal presumption as to mental trauma“where any pregnancy is alleged by the pregnant woman to havebeen caused by rape.” [Para 76][733-C-D]11. If Rule 3B(c) was to be interpreted such that its benefitsextended only to married women, it would perpetuate thestereotype and socially held notion that only married womenindulge in sexual intercourse, and that consequently, the benefitsin law ought to extend only to them. This artificial distinctionbetween married and single women is not constitutionallysustainable. The benefits in law extend equally to both singleand married women. recognition of the fact that there may be achange in woman’s material circumstance animates Rule 3B(c),Rule 3B(g) and Rule 3B(f). However, Rule 3B does not enumerateall the potential changes that woman’s material circumstancesmay undergo. It merely specifies some of the potential changesto woman’s material circumstances, in sub-rules (c), (f) and (g).From the object and purpose of the MTP Act, its overall scheme,and the categories of women specified in Rule 3B, it is evidentthat it was not the intention of the legislature to restrict the benefitof Section 3(2)(b) and Rule 3B only to women who may beconfronted with material alteration in the circumstances of theirlives in the limited situations enumerated in Rule 3B. Rather,the benefit granted by Rule 3B must be understood as extendingto all women who undergo change of material circumstances.[Paras 92, 93][738-C-F]

12. The ambit of reproductive rights is not restricted tothe right of women to have or not have children. It also includesthe constellation of freedoms and entitlements that enable awoman to decide freely on all matters relating to her sexual andreproductive health. Reproductive rights include the right toaccess education and information about contraception and sexual

Ahealth, the right to decide whether and what type ofcontraceptives to use, the right to choose whether and when tohave children, the right to choose the number of children, theright to access safe and legal abortions, and the right toreproductive healthcare. Women must also have the autonomyto make decisions concerning these rights, free from coercionBor violence. [Para 96][739-B-D]

13. If women with unwanted pregnancies are forced to carrytheir pregnancies to term, the state would be stripping them ofthe right to determine the immediate and long-term path theirlives would take. Depriving women of autonomy not only overCtheir bodies but also over their lives would be an affront to theirdignity. The right to choose for oneself – be it as significant aschoosing the course of one’s life or as mundane as one’s day-to-day activities – forms part of the right to dignity. It is this rightwhich would be under attack if women were forced to continueDwith unwanted pregnancies. [Para 110][744-G-H; 745-A]

14. The object of Section 3(2)(b) of the MTP Act read withRule 3B is to provide for abortions between twenty and twenty-four weeks, rendered unwanted due to change in the materialcircumstances of women. In view of the object, there is no rationaleEfor excluding unmarried or single women (who face change intheir material circumstances) from the ambit of Rule 3B. narrowinterpretation of Rule 3B, limited only to married women, wouldrender the provision discriminatory towards unmarried womenand violative of Article 14 of the Constitution. Article 14 requiresthe state to refrain from denying to any person equality beforeFthe law or equal protection of laws. Prohibiting unmarried or singlepregnant women (whose pregnancies are between twenty andtwenty-four weeks) from accessing abortion while allowing marriedwomen to access them during the same period would fall foul ofthe spirit guiding Article 14. The law should not decide theGbeneficiaries of statute based on narrow patriarchal principlesabout what constitutes “permissible sex”, which create invidiousclassifications and excludes groups based on their personalcircumstances. The rights of reproductive autonomy, dignity, andprivacy under Article 21 give an unmarried woman the right of

choice on whether or not to bear child, on similar footing of amarried woman. [Para 121][749-E-G; 750-A]

15. The state must ensure that information regardingreproduction and safe sexual practices is disseminated to all partsof the population. Further, it must see to it that all segments ofsociety are able to access contraceptives to avoid unintendedpregnancies and plan their families. Medical facilities and RMPsmust be present in each district and must be affordable to all.The government must ensure that RMPs treat all patients equallyand sensitively. Treatment must not be denied on the basis ofone’s caste or due to other social or economic factors. It is onlywhen these recommendations become reality that we can saythat the right to bodily autonomy and the right to dignity arecapable of being realized. [Para 134][753-E-F]

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X v. PR. SECY., HEALTH & FAMILY WELFARE DEPTT., GNCTDELHI

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Case Law Reference

X v. PR. SECY., HEALTH & FAMILY WELFARE DEPTT., GNCT

DELHI

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5802of 2022.

From the Judgment and Order dated 15.07.2022 of the High Courtof Delhi at New Delhi in C. M. Application No.30708 of 2022 in W.P.(C) No.10602 of 2022.

ADr. Amit Mishra, Rahul Sharma, Advs. for the Appellant.

Ms. Aishwarya Bhati, ASG, Ms. Ameyavikrama Thanvi,Ms. Manisha Chava, Ms. Shivani, Ms. Shivika Mehra, Aman Sharma,Manvendra Singh, Ms. Chitrangada Rastravara, Nithin Pavuluri, AbhijeetSingh, Ms. Shagun Thakur, Ms. Poornima Singh, Gurmeet Singh Makker,Ms. Aakanksha Kaul, Ms. Preeti Rani, Ms. Ruchi Kohli, Ketan Paul,Adit Khorana, Advs. for the Respondent.

The Judgment of the Court was delivered by

DR DHANANJAYA Y CHANDRACHUD, J.

Table of Contents

A. Background ...................................................................... 4B. Submissions ....................................................................... 7

C. The Medical Termination of Pregnancy Act 1971 and therules framed thereunder ........................................................ 9

D. Barriers to accessing safe and legal abortions ........... 16i. RMPs’ fear of prosecution....................................... 16

ii. Social stigma surrounding unmarried women....... 20

EE. Analysis ........................................................................... 22i. The rule of purposive interpretation .....................22ii. Transcending the institution of marriage as asource of rights..........................................................27Fa. Modern or atypical forms of familial relationships ... 29b. The equal status of married and unmarried orsingle women ................................................................ 30iii. The object and purpose of the MTP Act.............. 32Giv. The MTP Act as an aid of interpretation:Understanding “injury to mental health” .................. 39v. Construing Rule 3B.................................................. 43

F. Constitutional values animating the interpretation

of the MTP Act and MTP Rules ........................................... 55A

i. The right to reproductive autonomy ...................... 55

ii. The right to dignity ...................................................62

G. Purposive interpretation of Rule 3B furthers the

Bconstitutional mandate ................................................... 66

H. India’s obligations under international law ................. 69

I.Reiterating the positive obligations of the state ........... 72

A. Background

1. Leave granted.

2. This appeal arises out of the judgment of Division Bench ofthe High Court of Delhi dated 15 July 2022. The appellant invoked thewrit jurisdiction of the High Court seeking its permission to terminateher pregnancy before the completion of twenty-four weeks on 15 July2022. Other ancillary reliefs were sought. For convenience of reference,the reliefs claimed before the High Court are extracted below:

“A. Permit the Petitioner to terminate her ongoing pregnancythrough registered medical practitioners at any approved privateor government center or Hospital before 15.07.2022 as her reliefwill be infructuous after that as the pregnancy will be of around24 Weeks by that time;

B. Restrain the Respondent from taking any coercive action orcriminal proceedings against the Petitioner or any RegisteredMedical Practitioner terminating the pregnancy of the petitionerat any approved private center or hospital registered by Govt NCTof Delhi;

C. Direct the Respondent to include unmarried woman also withinthe ambit of the Rule 3B of the Medical Termination of PregnancyRules 2003 (as amended on 21.10.2021) for termination ofpregnancy under clause (b) of sub-section (2) Section 3 of theMTP Act, for period of up to twenty-four weeks;

D. Order an immediate Interim Relief of Stay during the courseof proceedings”

A3. The appellant is an Indian citizen and permanent resident ofManipur. She is currently residing in New Delhi. The appellant averredthat she is the eldest amongst five siblings and that her parents areagriculturists. At the time of the institution of the Writ Petition before theHigh Court of Delhi,[1] the appellant was carrying single intrauterinepregnancy corresponding to gestational age of twenty-two weeks.BThe appellant is an unmarried woman aged about twenty-five years,and had become pregnant as result of consensual relationship. Theappellant wished to terminate her pregnancy as “her partner had refusedto marry her at the last stage.” She stated that she did not want to carrythe pregnancy to term since she was wary of the “social stigma andCharassment” pertaining to unmarried single parents, especially women.Moreover, the appellant submitted that in the absence of source oflivelihood, she was not mentally prepared to “raise and nurture the childas an unmarried mother.” The appellant stated that the continuation ofthe unwanted pregnancy would involve risk of grave and immenseinjury to her mental health.D

4. The appellant sought permission to terminate her pregnancy interms of Section 3(2)(b) of the Medical Termination of Pregnancy Act1971[2] and Rule 3B(c) of the Medical Termination of Pregnancy Rules2003[3] (as amended on 12 October 2021). The appellant instituted aCriminal Miscellaneous Application[4] for grant of interim relief to terminateEher pregnancy during the pendency of the Writ Petition.

5. By its order dated 15 July 2022, the High Court issued noticerestricted only to prayer of the Writ Petition, and rejected the CriminalMiscellaneous Application, effectively rejecting prayers and B. TheHigh Court observed that Section 3(2)(b) of the MTP Act wasFinapplicable to the facts of the present case since the appellant, being anunmarried woman, whose pregnancy arose out of consensualrelationship, was not covered by any of the sub-clauses of Rule 3B ofthe MTP Rules. The High Court held that:

“8. The Petitioner, who is an unmarried woman and whoseGpregnancy arises out of consensual relationship, is clearly notcovered by any of the Clauses under the Medical Termination of

1 WP(C) 10602/2022

2 “MTP Act”

3 “MTP Rules”

H4 CM Application 30708/2022

Pregnancy Rules, 2003. Therefore, Section 3(2)(b) of the Act isnot applicable to the facts of this case.

9. Learned counsel for the Petitioner states that Rule 3B of theMedical Termination of Pregnancy Rules, 2003 is violative ofArticle 14 of the Constitution of India, 1950, inasmuch as it excludesan unmarried woman. Whether such rule is valid or not can bedecided only after the said rule is held ultra vires, for whichpurpose, notice has to be issued in the writ petition and has beendone so by this Court.

10. As of today, Rule 3B of the Medical Termination of PregnancyRules, 2003, stands, and this Court, while exercising its powerunder Article 226 of the Constitution of India, 1950, cannot gobeyond the Statute. Granting interim relief now would amount toallowing the writ petition itself.”

6. The order of the High Court gave rise to the present appeal.Notice was issued on the Petition for Special Leave to Appeal on 21July 2022. This Court, by its order dated 21 July 2022 modified the orderof the High Court and permitted the appellant to terminate her pregnancy.This Court passed the following ad interim order:

“22. In the above background, we pass the following ad interimorder:

(i) We request the Director of the All India Institute of MedicalSciences, Delhi to constitute Medical Board in terms of theprovisions of Section 3(2D) of the Act, extracted in the earlierpart of this order, during the course of 22 July 2022; and(ii) In theevent that the Medical Board concludes that the fetus can beaborted without danger to the life of the petitioner, team of doctorsat the All India Institute of Medical Sciences shall carry out theabortion in terms of the request which has been made before theHigh Court and which has been reiterated both in the SpecialLeave Petition and in the course of the submissions before thisCourt by counsel appearing on behalf of the petitioner. Beforedoing so the wishes of the petitioner shall be ascertained againand her written consent obtained after due verification of identity.”

7. Counsel for the petitioner and the respondent stated that aMedical Board was constituted at the All India Institute of Medical

ASciences.[5] The Board noted that the petitioner had consented to thetermination of her pregnancy and the procedure could be undertakenwithout danger to her life. The report submitted by AIIMS indicates thatthe termination of the pregnancy was safely carried out.

8. As the case involves substantial question of law, this CourtBhas taken it up for further consideration. The Writ Petition before theDelhi High Court shall stand transferred to this Court. The significantissue which comes up for determination in this appeal turns on theinterpretation of Rule 3B of the MTP Rules.

B. SubmissionsC9. Dr. Amit Mishra, learned counsel appearing on behalf of theappellant made the following submissions:

a.The appellant was an unmarried woman whose partner hadrefused to marry her. She did not wish to continue thepregnancy and have the child out of wedlock as she lackedDthe financial resources to do so. She was not employed andher parents were farmers;

b.She was also not mentally prepared to raise child by herself.If she was compelled to do so, it would cause grave injury toher physical and mental health. The appellant was not preparedEto face the social stigma surrounding unwed mothers; and

c.Section 3(2)(b) of the MTP Act and Rule 3B of the MTPRules are arbitrary and discriminatory because they excludeunmarried women from their ambit. They discriminate againstwomen on the ground of marital status, in violation of ArticleF14 of the Constitution.

10. Ms. Aishwarya Bhati, learned senior counsel and AdditionalSolicitor General has ably assisted this Court in the interpretation ofSection 3(2) of the MTP Act and Rule 3B(c) of the MTP Rules. Shemade the following submissions in support of the argument that RuleG3B(c) extends to unmarried or single women who are in long-termrelationships:

a.The interpretation of legislation must be guided by the textand context of statute as well as the object it seeks to achieve.

H5 “AIIMS”

The Statement of Objects and Reasons of statute must alsoguide its interpretation;

b. Modern legislations ought to be read in view of the evolutionof society from the time of enactment. The literal constructionof beneficial legislations must be avoided, and they ought tobe given purposive interpretation;

c. subordinate legislation should give effect to the statute it isenacted under. If two constructions are possible, theinterpretation in consonance with the statutory scheme oughtto be adopted;

d. The term “change of marital status” in Rule 3B(c) ought to beinterpreted as “change in the status of relationship” to includeunmarried or single women as well as women who are notdivorced but are separated or have been deserted;

e. “Live-in relationships” are equivalent to marital relationshipsbecause in both types of relationships, the woman is entitledto maintenance. Further, the children born out of such arelationship are vested with the right of succession. Variousnational legislations, including the MTP Act, do not make adistinction between married women and unmarried or singlewomen; and

f.Women enjoy the right to bodily integrity and autonomy, aswell as reproductive rights. They are entitled to exercisedecisional autonomy.

C. The Medical Termination of Pregnancy Act 1971 andthe rules framed thereunder

11. Before we embark upon discussion on the law and itsapplication, it must be mentioned that we use the term “woman” in thisjudgment as including persons other than cis-gender women who mayrequire access to safe medical termination of their pregnancies.

12. In India, termination of pregnancies is to be done strictly interms of the MTP Act. The preamble of the MTP Act states that it is an“Act to provide for the termination of certain pregnancies by registeredmedical practitioners and for matters connected therewith or incidentalthereto.” The MTP Act specifies the requirements to be fulfilled for

Aterminating pregnancy, including the persons who are competent toperform the termination procedure, circumstances when abortion ispermissible, and places where the procedure may be performed.

13. Section 3 of the MTP Act, as amended by the MedicalTermination of Pregnancy (Amendment) Act 2021 (8 of 2021),[6] providesBfor when pregnancies may be terminated:

“Section 3 - When pregnancies may be terminated by registeredmedical practitioners

(1) Notwithstanding anything contained in the Indian Penal Code(45 of 1860), registered medical practitioner shall not be guiltyCof any offence under that code or under any other law for thetime being in force, if any pregnancy is terminated by him inaccordance with the provisions of this Act.

2[(2) Subject to the provisions of sub-section (4), pregnancymay be terminated by registered medical practitioner,—

D(a) where the length of the pregnancy does not exceed twentyweeks, if such medical practitioner is, or

(b) where the length of the pregnancy exceeds twenty weeks butdoes not exceed twenty-four weeks in case of such category ofwoman as may be prescribed by rules made under this Act, if notEless than two registered medical practitioners are, of the opinion,formed in good faith, that—

(i) the continuance of the pregnancy would involve risk to thelife of the pregnant woman or of grave injury to her physical ormental health; or

(ii) there is substantial risk that if the child were born, it wouldsuffer from any serious physical or mental abnormality.

Explanation 1.—For the purposes of clause (a), where anypregnancy occurs as result of failure of any device or methodGused by any woman or her partner for the purpose of limiting thenumber of children or preventing pregnancy, the anguish causedby such pregnancy may be presumed to constitute grave injuryto the mental health of the pregnant woman.

Explanation 2.—For the purposes of clauses (a) and (b), whereany pregnancy is alleged by the pregnant woman to have beencaused by rape, the anguish caused by the pregnancy shall bepresumed to constitute grave injury to the mental health of thepregnant woman.

(2A) The norms for the registered medical practitioner whoseopinion is required for termination of pregnancy at differentgestational age shall be such as may be prescribed by rules madeunder this Act.

(2B) The provisions of sub-section (2) relating to the length of thepregnancy shall not apply to the termination of pregnancy by themedical practitioner where such termination is necessitated bythe diagnosis of any of the substantial foetal abnormalities diagnosedby Medical Board.

(2C) Every State Government or Union territory, as the case maybe, shall, by notification in the Official Gazette, constitute Boardto be called Medical Board for the purposes of this Act toexercise such powers and functions as may be prescribed by rulesmade under this Act.

(2D) The Medical Board shall consist of the following, namely:—

(a) Gynaecologist;

(b) Paediatrician;

(c) Radiologist or Sonologist; and

(d) such other number of members as may be notified in the OfficialGazette by the State Government or Union territory, as the casemay be.

(3) In determining whether the continuance of pregnancy wouldinvolve such risk of injury to the health as is mentioned in sub-section (2), account may be taken of the pregnant woman’s actualor reasonably foreseeable environment.

(4) (a) No pregnancy of woman, who has not attained the ageof eighteen years, or, who having attained the age of eighteenyears, is mentally ill person, shall be terminated except with theconsent in writing of her guardian.

706SUPREME COURT REPORTS

A(b) Save as otherwise provided in clause (a), no pregnancy shallbe terminated except with the consent of the pregnant woman.”

14. Section 3 provides that registered medical practitioners[7] shallnot be guilty of committing any offence under the Indian Penal Code1860[8] or under any other law for the time being in force if they terminateBpregnancies in accordance with the MTP Act. Sub-section (4) of Section3 stipulates that pregnancy shall not be terminated except with theconsent of the pregnant woman,[9] and if the woman is below 18 years ofage or is mentally ill, with the consent of her guardian.[10] Subject to therequirement contained in sub-section (4) of Section 3, sub-section (2) ofSection 3 provides that pregnancy may be terminated by registeredCmedical practitioner subject to the conditions laid down therein.Pregnancies may be terminated where they do not exceed twentyweeks[11] and for certain categories of women where they do not exceedtwenty-four weeks.[12] Section 3(2)(a) of the MTP Act permits thetermination of pregnancy where the length of the pregnancy does notDexceed twenty weeks. Section 3(2)(b) of MTP Act permits the terminationof pregnancy, where the length of the pregnancy is between twentyand twenty-four weeks, of such categories of women “as may beprescribed by Rules.” These pregnancies under Section 3 may beterminated if the medical practitioner in question (or in the case ofpregnancies between twenty and twenty-four weeks, not less than twoEregistered medical practitioners) is, in good faith, of the opinion that:

a. The continuance of the pregnancy would put the pregnantwoman’s life at risk (Section 3(2)(i));

b. The continuance of the pregnancy would involve grave dangerFto the pregnant woman’s physical health (Section 3(2)(i));

c. The continuance of the pregnancy would involve grave dangerto the pregnant woman’s mental health (Section 3(2)(i)); or

d. There is substantial risk that the child would suffer from aserious physical or mental abnormality, if it is born (Section3(2)(ii)).

7 “RMP”

8 “IPC”

9 Section 3(4)(b), MTP Act

10 Section 3(4)(a), MTP Act

11 Section 3(2)(a), MTP ActH12 Section 3(3)(b), MTP Act

In determining whether the continuation of the pregnancy wouldinvolve grave danger to the pregnant woman’s physical or mental health,her actual or reasonably foreseeable environment may be taken intoaccount.[13 ]We are of the opinion that significant reliance ought to beplaced on each woman’s own estimation of whether she is in positionto continue and carry to term her pregnancy.

15. The explanations to Section 3(2) provide for two legalpresumptions indicating what constitutes grave injury to the pregnantwoman’s mental health. Explanation 1 stipulates that pregnancies whichoccur due to the failure of contraceptive device or method used by awoman or her partner for limiting the number of children or preventingpregnancy shall be presumed to constitute grave injury to the mentalhealth of the pregnant woman, if the pregnancy has not exceeded twentyweeks. similar legal presumption is provided for in Explanation 2, whichstipulates that where woman alleges that pregnancy was caused asa consequence of rape, the anguish caused by the pregnancy shall bepresumed to constitute grave injury to her mental health. The legalpresumption in Explanation 2 is applicable to all pregnancies which havenot exceeded twenty-four weeks.

16. Pregnancies may be terminated only in hospital establishedor maintained by the government,[14] or any place approved for thepurposes of the MTP Act either by the government or by DistrictLevel Committee constituted in terms of Section 4(b). Further, theprovisions of Section 4 and the provisions in Section 3(2) (which relateto the length of the pregnancy and the requirement for the opinion of atleast two RMPs) shall not apply to the termination of pregnancies by anRMP, where the RMP is, in good faith, of the opinion that the terminationof the pregnancy is immediately necessary to save the life of the pregnantwoman.[15] The MTP Act also seeks to protect the privacy of womanwho has terminated pregnancy – any RMP who reveals the name orother particulars of such woman shall be liable to be sentenced toimprisonment which may extend to one year, or with fine, or both.[16] TheMTP Act vests the Central Government with the power to enact rules to

13 Section 3(3), MTP Act

14 Section 4(a), MTP Act

15 Section 5(1), MTP Act

16 Section 5A, MTP Act

Acarry out its provisions[17] and the State Governments with the power toenact regulations in certain cases.[18]

17. In exercise of this power, the Central Government notified theMTP Rules. The MTP Rules govern various aspects of the medicaltermination of pregnancies: they include rules on the District LevelBCommittee,[19] the Medical Board,[20] RMPs,[21] and the place where apregnancy may be terminated.[22] Rule 3B, recently amended by theMedical Termination of Pregnancy (Amendment) Rules 2021,[23] isrelevant for the purposes of the present discussion. It governs thecategories of women under clause (b) of sub-section 2 of Section 3 whomay have their pregnancy terminated if the length of their pregnancyCexceeds twenty weeks but does not exceed twenty-four weeks. It states:

“3-B. Women eligible for termination of pregnancy up to twenty-four weeks.—The following categories of women shall beconsidered eligible for termination of pregnancy under clause (b)of sub-section (2) Section 3 of the Act, for period of up to twenty-Dfour weeks, namely—

(a) survivors of sexual assault or rape or incest;

(b) minors;

(c) change of marital status during the ongoing pregnancyE(widowhood and divorce);

(d) women with physical disabilities [major disability as per criterialaid down under the Rights of Persons with Disabilities Act, 2016(49 of 2016)];

(e) mentally ill women including mental retardation;F(f) the foetal malformation that has substantial risk of beingincompatible with life or if the child is born it may suffer fromsuch physical or mental abnormalities to be seriously handicapped;and

G17 Section 6, MTP Act

18 Section 7, MTP Act

19 Rule 3, MTP Rules

20 Rule 3A, MTP Rules

21 Rules 4, 4A, MTP Rules

22 Rules 5, 6, 7, 8, MTP Rules

H23 “MTP Amendment Rules”

(g) women with pregnancy in humanitarian settings or disaster oremergency situations as may be declared by the Government.”

D. Barriers to accessing safe and legal abortions

18. Despite the enactment of the MTP Act, number of hurdlescontinue to prevent full access to safe and legal abortions, pushing womento avail of clandestine, unsafe abortions. These barriers include insufficientinfrastructural facilities, lack of awareness, social stigma, and failureto ensure confidential care. In some situations, unmarried women faceparticular barriers due to gender stereotypes about women’s sexualautonomy outside marriage. These barriers are serious impedimentand deter single women from seeking safe and legal abortions. Suchbarriers may contribute to delay in accessing abortion services or acomplete denial of such services, consequently negating women’s rightto reproductive autonomy.

i. RMPs’ fear of prosecution

19. It is not only the factors mentioned above which hinder accessto safe abortion but also fear of prosecution under the country’s criminallaws. Under the current legal framework, the MTP Act merely lays outexceptions to the provisions criminalizing abortion in Sections 312 to 318of the IPC. Section 3(1) of the MTP Act begins with non-obstanteclause and stipulates that “Notwithstanding anything contained in theIndian Penal Code (45 of 1860), registered medical practitioner shallnot be guilty of any offence under that Code or under any other law forthe time being in force, if any pregnancy is terminated by him inaccordance with the provisions of this Act.” In terms of Section 3(1),the termination of pregnancy is criminal offence under the IPC,unless it fulfils the conditions laid down in the MTP Act, including whocan terminate pregnancy, the place where termination can take place,and the specific conditions in accordance with which such termination ispermissible. Section 5(2) provides penalties when termination ofpregnancy is carried out by person who is not an RMP. Section 5(3)provides penalties when termination of pregnancy is carried out in aplace other than that mentioned in Section 4. RMPs and women seekingtermination of pregnancy are exempted from any legal action under theprovisions of the IPC mentioned above only when these conditions arefulfilled.

A20. Presently, under the MTP Act, the opinion of an RMP (inaccordance with the restrictions and grounds laid down in the Act) isdecisive. It is on the basis of the opinion formed by RMP(s), eitherunder Section 3 or under Section 5, that woman can terminate apregnancy under the MTP Act. This makes the MTP Act provider-centric law. Since women’s right to access abortion is conditional on theBapproval by an RMP, the denial of services by an RMP compels womento approach courts or seek abortions in unsafe conditions.[24] fear ofprosecution under this complex labyrinth of laws, including linking of theMTP Act with the IPC, acts as major barrier to safe abortion access,by having chilling effect on the behaviour of RMPs. The chilling effectC— historically associated with protection of freedom of speech andexpression under Article 19[25] — has an impact on the decision-makingof medical professionals acting under the MTP Act and consequentlyimpedes access to safe and legal abortions and the actualization ofwomen’s fundamental right to reproductive autonomy.

D21. In Navtej Singh Johar v. Union of India[26]a ConstitutionBench of this Court held that Section 377 had chilling effect on theexercise of freedom of individuals, which posed grave danger to theunhindered fulfilment of one’s sexual orientation, as an element of dignityand privacy. One of us, Dr. DY Chandrachud, J., recognized the impactof the criminalization of homosexuality on the spread of HIV/AIDS andEhow fear of prosecution and stigma created barriers to accessing HIVprevention services, in his concurring opinion. This Court observed that:

“508. The silence and secrecy that accompanies institutionaldiscrimination may foster conditions which encourage escalationof the incidence of HIV/AIDS. The key population is stigmatizedFby health providers, employers and other service providers. As aresult, there exist serious obstacles to effective HIV preventionand treatment as discrimination and harassment can hinder accessto HIV and sexual health services and prevention programmes.”

22. Although the actions of RMPs done in good faith under theGMTP Act are protected under Section 8, the spectre of criminalization

24 Dipika Jain, Time to Rethink Criminalisation of Abortion? Towards Gender JusticeApproach, 12 NUJS Law Review 2 (2019)

25 S. Khushboo v. Kanniammal, (2010) 5 SCC 600; Shreya Singhal v. Union of India,(2015) 5 SCC 1H26 (2018) 10 SCC 1

casts chilling effect on them. The fear faced by RMPs of prosecutionunder the penal provisions often leads to unnecessary delays. It is acommon yet lamentable practice for RMPs to insist on compliance withextra-legal conditions such as consent from the woman’s family,documentary proofs, or judicial authorisation.[27] If the woman fails tocomply with these additional requirements, RMPs frequently decline toprovide their services in conducting legal abortions.

23. These extra-legal requirements have no basis in law. As notedabove, it is only the woman’s consent (or her guardian’s consent if she isa minor or mentally ill) which is material. RMPs must refrain from imposingextra-legal conditions on women seeking to terminate their pregnancy inaccordance with the law. They need only ensure that the provisions ofthe MTP Act (along with the accompanying rules and regulations) arecomplied with.

24. Before the MTP Amendment Act 2021 was enacted, thepetitioners in number of cases before the High Courts also soughtpermission to terminate pregnancy where the gestation was below twentyweeks.[28] The unamended MTP Act clearly stated that termination ofpregnancy between twelve and twenty weeks was permissible whentwo RMPs opined that the request for termination of pregnancy meetseither of the four grounds mentioned in Section 3(2).[29] Thus, there wasno legal requirement to refer cases within the legal limit of twenty weeksto the courts. These cases represent the barriers faced by women inaccessing safe and legal abortions, even when their decision to terminatetheir pregnancy is permitted by the law.

25. This Court has recognized the disastrous effects of unnecessarydelays and lack of promptitude in the attitude of authorities when dealingwith termination of pregnancies. In Z v. State of Bihar,[30] this Court

27 Centre for Reproductive Rights, “Reform to Address Women’s and Girl’s need forAbortion after 20 weeks “ (2018)

28 See XYZ v. State of Maharashtra, 2018 SCC OnLine Bom 13751; Prabhavati DattatrayJadhav v. State of Maharashtra, 2021 SCC Online Bom 9339; ABC v. State ofMaharashtra, (2018) 4 Mah LJ 374, 2018 SCC Online Bom 144; v. State ofMaharashtra, 2022 SCC OnLine Bom 1361; D. Rajeswari v. State of Tamil Nadu, 1996Cri LJ 3795; X v. Govt. of NCT of Delhi, 2013 SCC OnLine Del 4929; Puja Kumari v.State of West Bengal, 2019 SCC Online Cal 1277; Velunatchiyar v. Govt. of TamilNadu, 2021 SCC Online Mad 5047; M. Kala v. The Inspector of Police, 2015 SCC OnLine Mad 776729 Section 3(2)(b), MTP Act 197130 (2018) 11 SCC 572

Afound that the state authorities, including Patna Medical College andHospital, had erred in failing to terminate the pregnancy before thepassage of twenty weeks, despite the woman seeking an abortion on theground that she was victim of rape. This Court also rebuked the“negligence and carelessness” of the authorities in failing to terminatethe pregnancy as permitted by law. It noted that the proceedings in theBHigh Court were unduly delayed, leading to situation where thepregnancy could not be terminated without endangering the life of thewoman in question. Compensation was awarded to the petitioner (i.e.,the pregnant woman).

ii. Social stigma surrounding unmarried womenC

26. An RMP’s decision to provide medical termination of apregnancy is also influenced by social stigma surrounding unmarriedwomen and pre-marital sex, gender stereotypes about women taking onthe mantle of motherhood, and the role of women in society.

D27. Due to widespread misconception that termination ofpregnancies of unmarried women is illegal, woman and her partnermay resort to availing of abortions by unlicensed medical practitioners infacilities not adequately equipped for such medical procedures, leadingto heightened risk of complications and maternal mortality. In SurendraChauhan v. State of Madhya Pradesh,[31] two-Judge Bench of thisECourt upheld the Madhya Pradesh High Court’s order to convict theaccused under Section 314 read with Section 34 of the IPC for causinga woman’s death by miscarriage. According to the facts of the case, theaccused was in an “illicit relation” with the deceased, an unmarriedwoman of twenty-four years. The deceased woman had becomeFpregnant as result of this relationship. Both of them had approachedthe clinic of so-called doctor (who was named as co-accused) toterminate the pregnancy of around 3 months (approximately 12 weeks).The purported doctor was neither an RMP nor was his clinic approvedby the government, in terms of the requirements laid down in the MTPAct. During the procedure for the termination of pregnancy, the womanGpassed away. This case is illustrative of the dangers of unsafe abortions,undertaken due to the social stigma surrounding pregnancies amongunmarried women.

28. The social stigma that women face for engaging in pre-maritalsexual relations prevents them from realizing their right to reproductivehealth in variety of ways. They have insufficient or no access toknowledge about their own bodies due to lack of sexual health education,their access to contraceptives is limited, and they are frequently unableto approach healthcare providers and consult them with respect to theirreproductive health. Consequently, unmarried and single women faceadditional obstacles.

29. The social stigma surrounding single women who are pregnantis even greater and they often lack support from their family or partner.This leads to the proliferation of persons not qualified / certified to practicemedicine. Such persons offer the possibility of discreet abortion andmany women may feel compelled by their circumstances to engage theservices of such persons instead of opting for medically safe abortion.As illustrated in Surendra Chauhan (supra), this often leads to disastrousconsequences for the woman. Keeping in view these barriers to accessingreproductive healthcare, we now turn to the interpretation of Section3(2) of the MTP Act and Rule 3B of the MTP Rules.

E. Analysis

i. The rule of purposive interpretation

30. The question that arises is whether Rule 3B includes unmarriedwomen, single women, or women without partner under its ambit. Theanswer may be discerned by imparting purposive interpretation to Rule3B.

31. The cardinal principle of the construction of statutes is to identifythe intention of the legislature and the true legal meaning of the enactment.The intention of the legislature is derived by considering the meaning ofthe words used in the statute, with view to understanding the purposeor object of the enactment, the mischief, and its corresponding remedythat the enactment is designed to actualise.[32] Ordinarily, the languageused by the legislature is indicative of legislative intent. In Kanailal Surv. Paramnidhi Sadhu Khan,[33] Gajendragadkar, J. (as the learned Chief

32 JUSTICE G.P SINGH, G.P. SINGH: PRINCIPLES OF STATUTORY INTERPRETATION, (LexisNexis,2016), at page 12; State of Himachal Pradesh v. Kailash Chand Mahajan, 1992 Supp (2)SCC 351; Union of India v. Elphinstone Spinning and Weaving Co. Ltd., (2001) 4 SCC139

33 AIR 1957 SC 907

AJustice then was) opined that “the first and primary rule of constructionis that the intention of the Legislature must be found in the words usedby the Legislature itself.” But when the words are capable of bearingtwo or more constructions, they should be construed in light of the objectand purpose of the enactment. The purposive construction of the provisionmust be “illumined by the goal, though guided by the word.”[34] AharonBBarak opines that in certain circumstances this may indicate giving “anunusual and exceptional meaning” to the language and words used.[35]Before we engage in the exercise of purposive construction, we mustcaution that court’s power to purposively interpret statutory textdoes not imply that judge can substitute legislative intent with theirCown individual notions. The alternative construction propounded by thejudge must be within the ambit of the statute and should help carry outthe purpose and object of the Act in question.

32. The interpretation of subordinate legislation should beconsistent with the enabling Act.[36] subordinate legislation must beDreasonable and in consonance with the legislative policy. It should beinterpreted in meaningful manner, so as to give effect to the purposeand object of the enabling Act. The interpretation which is in consonancewith the statutory scheme and gives effect to the statute must be adopted.

33. In Principles of Statutory Interpretation by Justice G.P. Singh,Eit is stated that statute must be read in its context when attempting tointerpret its purpose.[37] Context includes reading the statute as whole,referring to the previous state of law, the general scope of the statute,surrounding circumstances and the mischief that it was intended toremedy.[38] The treatise explains that:

F“For ascertaining the purpose of statute one is not restricted tothe internal aid furnished by the statute itself, although the text of

34 Kanta Goel v. B.P Pathak, 1977 SCR (3) 412

35 AHARON BARAK, PURPOSIVE INTERPRETATION IN LAW, (Princeton University Press, 2007),at page 306

36 Kedarnath Jute Manufacturing Co. v. Commercial Tax Officer, AIR 1966 SC 12;Union of India v. Tulsiram Patel, (1986) 3 SCC 398; M.L. Kamra v. Chairman-cum-GManaging Director, New India Assurance Co. Ltd. (1992) 1 SCR 220; St Johns TeachersTraining Institute v. Regional Director National Council of Teacher Education, (2003)3 SCC 321

37 JUSTICE G.P SINGH, G.P. SINGH: PRINCIPLES OF STATUTORY INTERPRETATION, (LexisNexis,2016), at page 35

38 Union of India v. Sankalchand Himatlal Sheth, (1977) 4 SCC 193, Reserve Bank ofHIndia v. Peerless General Finance and Investment Co. Ltd., (1987) 1 SCC 424

the statute taken as whole is the most important material forascertaining both the aspects of ‘intention’. Without intending tolay down precise and exhaustive list of external aids, LordSomervell has stated: “The mischief against which the statute isdirected and, perhaps though to an undefined extent the surroundingcircumstances can be considered. Other statutes in pari materiaand the state of the law at the time are admissible.” These externalaids are also brought in by widening the concept of ‘context’ “asincluding not only other enacting provisions of the same statute,but its preamble, the existing state of the law, other statutes in parimateria, and the mischief which the statute was intended toremedy.” In the words of Chinappa Reddy, J.: “Interpretation mustdepend on the text and the context. They are the bases ofinterpretation. One may well say if the text is the texture, contextis what gives colour. Neither can be ignored. Both are important.That interpretation is best which makes the textual interpretationmatch the contextual. statute is best interpreted when we knowwhy it was enacted.”

34. The rule of purposive interpretation was first articulated inHeydon’s case[39]in the following terms:

“for the sure and true interpretation of all statutes in general (bethey penal or beneficial, restrictive or enlarging of the commonlaw) four things are to be discerned and considered:

1st. What was the common law before the making of the Act.

2nd. What was the mischief and defect for which the commonlaw did not provide.

3rd. What remedy Parliament hath resolved and appointed to curethe disease of the commonwealth.

And, 4th. The true reason of the remedy; and then the office ofall the Judges is always to make such construction as shall suppressthe mischief, and advance the remedy, and to suppress subtleinventions and evasions for continuance of the mischief, and proprivato commodo, and to add force and life to the cure and remedy,according to the true intent of the makers of the Act, pro bonopublico”

A35. In Bengal Immunity Co. v. State of Bihar,[40] the ConstitutionBench applied the mischief rule in Heydon’s case in the construction ofArticle 286 of the Constitution. In Kehar Singh v. State (DelhiAdmn.),[41] three-judge Bench of this Court held:

“231. During the last several years, the “golden rule” has beenBgiven go-by. We now look for the “intention” of the legislatureor the “purpose” of the statute. First, we examine the words ofthe statute. If the words are precise and cover the situation inhand, we do not go further. We expound those words in the naturaland ordinary sense of the words. But, if the words are ambiguous,uncertain or any doubt arises as to the terms employed, we deemCit as our paramount duty to put upon the language of the legislaturerational meaning. We then examine every word, every sectionand every provision. We examine the Act as whole. We examinethe necessity which gave rise to the Act. We look at the mischiefswhich the legislature intended to redress. We look at the wholeDsituation and not just one-to-one relation. We will not consider

any provision out of the framework of the statute. We will notview the provisions as abstract principles separated from themotive force behind. We will consider the provisions in thecircumstances to which they owe their origin. We will considerthe provisions to ensure coherence and consistency within theElaw as whole and to avoid undesirable consequences.

233. For this purpose, we call in external and internal aids:

“External aids are: the Statement of Objects and Reasons whenthe Bill was presented to Parliament, the reports of the Committee,if any, preceding the Bill, legislative history, other statutes in parimateria and legislation in other States which pertain to the samesubject matter, persons, things or relations.

Internal aids are: Preamble, scheme, enacting parts of the statutes,rules of languages and other provisions in the statutes.”

36. catena of decisions emanating from this Court, includingKerala Fishermen’s Welfare Fund Board v. Fancy Food,[42]Bharat40 (1955) 2 SCR 60341 (1988) 3 SCC 609H42 (1995) 4 SCC 341

Singh v. Management of New Delhi Tuberculosis Centre, NewDelhi,[43]Bombay Anand Bhavan Restaurant v. ESI Corpn.,[44]Unionof India v. Prabhakaran Vijaya Kumar,[45] settle the proposition thatprogressive and beneficial legislation must be interpreted in favour ofthe beneficiaries when it is possible to take two views of legal provision.

37. In S. Gopal Reddy v. State of A.P.,[46]while interpreting theDowry Prohibition Act 1961 (a beneficial legislation), this Courtinterpreted the meaning of “dowry” by adopting the purposiveinterpretation approach:

“12. It is well-known rule of interpretation of statutes that thetext and the context of the entire Act must be looked into whileinterpreting any of the expressions used in statute. The courtsmust look to the object which the statute seeks to achieve whileinterpreting any of the provisions of the Act. purposive approachfor interpreting the Act is necessary. We are unable to persuadeourselves to agree with Mr Rao that it is only the property orvaluable security given at the time of marriage which would bringthe same within the definition of “dowry” punishable under theAct, as such an interpretation would be defeating the very objectfor which the Act was enacted. Keeping in view the object of theAct, “demand of dowry” as consideration for proposedmarriage would also come within the meaning of the expressiondowry under the Act. If we were to agree with Mr Rao that it isonly the “demand” made at or after marriage which is punishableunder Section 4 of the Act, some serious consequences, whichthe legislature wanted to avoid, are bound to follow. Take forexample case where the bridegroom or his parents or otherrelatives make “demand” of dowry during marriage negotiationsand later on after bringing the bridal party to the bride’s housefind that the bride or her parents or relatives have not met theearlier “demand” and call off the marriage and leave the bride’shouse, should they escape the punishment under the Act. Theanswer has to be an emphatic “no”. It would be adding insult toinjury if we were to countenance that their action would not attractthe provisions of Section 4 of the Act. Such an interpretation would43 (1986) 2 SCC 61444 (2009) 9 SCC 6145 (2008) 9 SCC 52746 (1996) 4 SCC 596

DEFG

frustrate the very object of the Act and would also run contrary tothe accepted principles relating to the interpretation of statutes.”

(emphasis in original)

This principle has consistently been applied by this Court whileconstruing beneficial legislation. Most recently in KH Nazar v. MathewBK Jacob,[47] Nageshwar Rao, J. writing for two-judge Bench observed:

“11. Provisions of beneficial legislation have to be construedwith purpose-oriented approach. The Act should receive liberalconstruction to promote its objects. Also, literal construction ofthe provisions of beneficial legislation has to be avoided. It is theCcourt’s duty to discern the intention of the legislature in makingthe law. Once such an intention is ascertained, the statute shouldreceive purposeful or functional interpretation.”

ii. Transcending the institution of marriage as source ofrightsD

38. While much of law’s benefits were (and indeed are) rooted inthe institution of marriage, the law in modern times is shedding the notionthat marriage is precondition to the rights of individuals (alone or inrelation to one another). Changing social mores must be borne in mindwhen interpreting the provisions of an enactment to further its objectEand purpose. Statutes are considered to be “always speaking.”[48]

39. In Badshah v. Urmila Badshah Godse,[49] this Courtreaffirmed that the law should be interpreted in terms of the changingneeds of the times and circumstances. AK Sikri, J. speaking for two-judge Bench of this Court, observed that it is the duty of courts to bridgeFthe gap between law and society by advancing purposive interpretationof statutes:

“16. The law regulates relationships between people. It prescribespatterns of behaviour. It reflects the values of society. The role ofthe court is to understand the purpose of law in society and tohelp the law achieve its purpose. But the law of society is aliving organism. It is based on given factual and social realitythat is constantly changing. Sometimes change in law precedes

47 (2020) 14 SCC 126

48 Dharni Sugars and Chemicals Ltd v. Union of India, (2019) 5 SCC 480

49 (2014) 1 SCC 188

societal change and is even intended to stimulate it. In most cases,however, change in law is the result of change in social reality.Indeed, when social reality changes, the law must change too.Just as change in social reality is the law of life, responsiveness tochange in social reality is the life of the law. It can be said that thehistory of law is the history of adapting the law to society’schanging needs. In both constitutional and statutory interpretation,the court is supposed to exercise discretion in determining theproper relationship between the subjective and objective purposesof the law.”

(emphasis supplied)

40. In Navtej Singh Johar (supra), this Court emphasized thetransformative nature of our Constitution. Transformativeconstitutionalism promotes and engenders societal change by ensuringthat every individual is capable of enjoying the life and liberties guaranteedunder the Constitution. This Court observed that transformativeconstitutionalism places duty on the judiciary to “ensure and uphold thesupremacy of the Constitution, while at the same time ensuring that asense of transformation is ushered constantly and endlessly in the societyby interpreting and enforcing the Constitution as well as other provisionsof law in consonance with the avowed object.”[50]

a. Modern or atypical forms of familial relationships

41. The law must remain cognizant of the fact that changes insociety have ushered in significant changes in family structures. In S.Khusboo v. Kanniammal,[51] three-judge Bench of this Courtacknowledged that live-in relationships and pre-marital sex should notbe associated with the lens of criminality. The Court observed:

“46. […] While there can be no doubt that in India, marriage is animportant social institution, we must also keep our minds open tothe fact that there are certain individuals or groups who do nothold the same view. To be sure, there are some indigenous groupswithin our country wherein sexual relations outside the maritalsetting are accepted as normal occurrence. Even in the societalmainstream, there are significant number of people who seenothing wrong in engaging in premarital sex. Notions of social

50 Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, at paragraph 122

51 (2010) 5 SCC 600

morality are inherently subjective and the criminal law cannot beused as means to unduly interfere with the domain of personalautonomy. Morality and criminality are not coextensive.”

42. In Deepika Singh v. Central Administrative Tribunal,[52] atwo-Judge Bench of this Court (of which one of us, Dr. DY Chandrachud,BJ. was part) recognized that family units may manifest in atypicalways:

“26. The predominant understanding of the concept of “family”both in the law and in society is that it consists of single,unchanging unit with mother and father (who remain constantCover time) and their children. This assumption ignores both, themany circumstances which may lead to change in one’s familialstructure, and the fact that many families do not conform to thisexpectation to begin with. Familial relationships may take the formof domestic, unmarried partnerships or queer relationships. Ahousehold may be single parent household for any number ofDreasons, including the death of spouse, separation, or divorce.Similarly, the guardians and caretakers (who traditionally occupythe roles of the “mother” and the “father”) of children may changewith remarriage, adoption, or fostering. These manifestations oflove and of families may not be typical but they are as real asEtheir traditional counterparts. Such atypical manifestations of thefamily unit are equally deserving not only of protection under lawbut also of the benefits available under social welfare legislation.The black letter of the law must not be relied upon to disadvantagefamilies which are different from traditional ones. The sameundoubtedly holds true for women who take on the role ofFmotherhood in ways that may not find place in the popularimagination.”

43. Societal reality, as observed by this Court in Deepika Singh(supra), indicates the need to legally recognize non-traditionalmanifestations of familial relationships. Such legal recognition isGnecessary to enable individuals in non-traditional family structures toavail of the benefits under beneficial legislation, including the MTP Act.

b. The equal status of married and unmarried or single women

44. Over the years, the Parliament has enacted legislation bringingabout congruence between the rights of married and unmarried women.The Maternity Benefit Act 1961 was enacted to provide maternity benefitsto women employed in any establishment. In terms of Section 5 of theMaternity Benefit Act 1961, the payment of maternity benefits isextended to all women (including unmarried women) by the use of thephrase “every woman.”

45. The Hindu Succession Act 1956 was enacted to codify thelaw relating to intestate succession among Hindus. Section 6 of the HinduSuccession Act 1956 pertains to devolution of interest in coparcenaryproperty. In terms of this provision daughter, irrespective of her maritalstatus, is coparcener in her own right in the same manner as the son byvirtue of the Hindu Succession (Amendment) Act 2005.

46. Section 8 of the Hindu Adoptions and Maintenance Act 1956stipulates that any female Hindu regardless of her marital status has thecapacity to take son or daughter in adoption. Sections 7 and 8 of theGuardian and Wards Act 1890 allows for persons to apply for an orderof guardianship without making any distinction between men or women,married or unmarried.

47. Through the above enactments, the law has emphasized thatunmarried women have the same rights as married women in terms ofadoption, succession, and maternity benefits. Importantly, these legislationsalso signify that both married and unmarried women have equal decisionalautonomy to make significant choices regarding their own welfare.

48. In the evolution of the law towards gender equal society, theinterpretation of the MTP Act and MTP Rules must consider the socialrealities of today and not be restricted by societal norms of an age whichhas passed into the archives of history. As society changes and evolves,so must our mores and conventions. changed social context demandsa readjustment of our laws. Law must not remain static and itsinterpretation should keep in mind the changing social context and advancethe cause of social justice.

iii. The object and purpose of the MTP Act

49. The purpose or object of an enactment is the mischief at whichthe enactment is directed and the remedy which the lawmakers havedevised to address the mischief. number of decisions, such as Chiranjit

ALal Chowdhury v. Union of India,[53]A. Thangal Kunju Musaliar v.M. Venkatachalam Potti,[54] State of Himachal Pradesh v. KailashChand Mahajan,[55] and National Insurance Co. Ltd. v. SwaranSingh[56] lay down that it is desirable to look into the legislative historyand the Statement of Objects and Reasons of an enactment to appreciatethe background and state of affairs leading up to the legislation and theBcircumstances which were prevalent at the time the statute was enacted.

50. Prior to the enactment of the MTP Act, the medical terminationof pregnancy was governed by the IPC. Chapter XVI of the IPC containsa segment titled “Of the causing of miscarriage, of injuries to unbornchildren, of the exposure of infants, and of the concealment of births”,Cwith Sections 312 to 318 forming part of this segment. Section 312criminalizes abortion, making any person (including the pregnant womanherself) liable for causing the miscarriage of woman with an unbornfoetus, except where the procedure is done in good faith in order to savethe woman’s life. Section 313 stipulates penalty of imprisonment forDlife or imprisonment for term which may extend to ten years when theoffence of ‘causing miscarriage’ is committed without the consent ofthe woman. Section 312 to Section 316 of the IPC failed to make adistinction between wanted and unwanted pregnancies, thereby makingit extremely onerous for women to access safe abortions. Before 1971,the criminalization of abortion under the IPC often compelled women toEseek unsafe, unhygienic and unregulated abortions, leading to an increasein maternal morbidity and mortality.51. In this background, the Medical Termination of PregnancyBill[57] was drafted and introduced in the Rajya Sabha on 17 November1969. On 2 August 1971, the MTP Bill was introduced in the Lok SabhaFwith the intent to “liberalise some of the restrictions under section 312 ofthe IPC.”[58] The MTP Act was enacted by Parliament as “health”measure, “humanitarian” measure and “eugenic” measure. The relevantportion of the Statement of Objects and Reasons of the MTP Act isextracted below:G

53 1950 SCR 86954 1950 SCR 86955 1992 Supp (2) SCC 35156 (2004) 3 SCC 29757 “MTP Bill”H58 Lok Sabha Debates, Fifth Series, Vol. VII, No. 53 (2 August 1972), at page 159

“1. The provisions regarding the termination of pregnancy in thePenal Code, 1860 which were enacted about century ago weredrawn up in keeping with the then British Law on the subject.Abortion was made crime for which the mother as well as theabortionist could be punished except where it had to be induced inorder to save the life of the mother. It has been stated that thisvery strict law has been observed in the breach in very largenumber of cases all over the country. Furthermore, most of thesemothers are married women, and are under no particular necessityto conceal their pregnancy.

2. In recent years, when health services have expanded andhospitals are availed of to the fullest extent by all classes of society,doctors have often been confronted with gravely ill or dyingpregnant women whose pregnant uterus have been tampered witha view to causing an abortion and consequently suffered veryseverely.

3. There is thus avoidable wastage of the mother’s health, strengthand, sometimes, life. The proposed measure which seeks toliberalise certain existing provisions relating to termination ofpregnancy has been conceived (1) as health measure—whenthere is danger to the life or risk to physical or mental health ofthe woman; (2) on humanitarian grounds-such as when pregnancyarises from sex crime like rape or intercourse with lunaticwoman, etc.; and (3) eugenic grounds—where there is substantialrisk that the child, if born, would suffer from deformities anddiseases.”

The whole tenor of the MTP Act is to provide access to safe andlegal medical abortions to women. The MTP Act is primarily beneficiallegislation, meant to enable women to access services of medicaltermination of pregnancies provided by an RMP. Being beneficiallegislation, the provisions of the MTP Rules and the MTP Act must beimbued with purposive construction. The interpretation accorded tothe provisions of the MTP Act and the MTP Rules must be in consonancewith the legislative purpose.

52. The MTP Amendment Act 2021 intended to extend the benefitsof the statute to all women, including single and unmarried women. TheMTP Amendment Act 2021, which came into force from 24 September

A2021, introduced major change in Section 3 of the MTP Act by extendingthe upper limit for permissible termination of pregnancy from twentyweeks to twenty-four weeks. In terms of the unamended MTP Act, apregnancy could only be terminated under Section 3(2) if it did not exceedtwenty weeks. The MTP Amendment Act 2021 extended the upperlimit and allowed termination of pregnancy up to twenty-four weeks forBspecific categories of women based on the opinion of two RMPs.

53. The MTP Amendment Act 2021 also extended the benefit ofthe legal presumption of grave injury to the mental health of womanon account of the failure of contraception, to all women and not justmarried women. In the unamended MTP Act, Explanation II providedCthat the anguish caused by pregnancy resulting from failure of anydevice or method used by any “married woman or her husband” forthe purpose of limiting the number of children may be presumed toconstitute grave injury to the mental health of the woman. After theMTP Amendment Act 2021, Explanation I provides that the anguishDcaused by pregnancy (up to twenty weeks) arising from failure of acontraceptive device used by “any woman or her partner” either forlimiting the number of children or for preventing pregnancy can bepresumed to constitute grave injury to woman’s mental health. Byeliminating the word “married woman or her husband” from the schemeof the MTP Act, the legislature intended to clarify the scope of SectionE3 and bring pregnancies which occur outside the institution of marriagewithin the protective umbrella of the law.

54. The Statement of Objects and Reasons of the AmendmentAct locates the purpose within the framework of reproductive rights:

F“With the passage of time and advancement of medical technologyfor safe abortion, there is scope for increasing upper gestationallimit for terminating pregnancies especially for vulnerable womenand for pregnancies with substantial foetal anomalies detectedlate in pregnancy. Further, there is also need for increasing accessof women to legal and safe abortion service in order to reduceGmaternal mortality and morbidity caused by unsafe abortion andits complications. Considering the need and demand forincreased gestational limit under certain specifiedconditions and to ensure safety and well-being of women, itis proposed to amend the said Act. The proposed Bill is aHstep towards safety and well-being of women and will

enlarge the ambit and access of women to safe and legalabortion without compromising on safety and quality of care.The proposal will also ensure dignity, autonomy, confidentialityand justice for women who need to terminate pregnancy.”

(emphasis supplied)

55. The Statement of Objects and Reasons indicates that the MTPAmendment Act 2021 is primarily concerned with increasing access tosafe and legal abortions to reduce maternal mortality and morbidity. Theincrease in the upper gestational limit for terminating pregnancies under“certain specified conditions” was considered necessary to fulfil the goalof ensuring “dignity, autonomy, confidentiality and justice for womenwho need to terminate pregnancy.”

56. The unamended MTP Act of 1971 was largely concernedwith “married women”, as evident from paragraph 1 of its Statement ofObjects and Reasons, which stated that most of the women seekingabortions were married, and thus “under no particular necessity to concealtheir pregnancy.” Significantly, the 2021 Statement of Objects andReasons does not make distinction between married and unmarriedwomen. Rather, all women are entitled to the benefit of safe and legalabortions.

57. This is consistent with the Reply of the Ministry of Health &Family Welfare to the Report on ‘Women’s Healthcare: Policy Options’by the Committee on Empowerment of Women (2020-2021). TheMinistry responded that “to increase the access of safe abortion servicesto all women, the provision of abortion services is proposed for all womenirrespective of their marital status.”[59] The Committee on Empowermentof Women had recommended “raise [in] the permissible period ofabortions to 24 weeks” and the deletion of the word “married” in thelegislation, so that “anyone can get an abortion without having to dependon sham clinics as last recourse.”

58. The legislative history of the MTP Act, including the speechof the Minister of Health and Family Welfare while introducing theAmendment Bill, sheds light on the social context which necessitated

59 Committee of Empowerment of Women (2020-2021), “Fourth Report (SeventeenthLok Sabha) on the action taken by the Government on the recommendations containedin the Eleventh Report (Sixteenth Lok Sabha) on Women’s Healthcare: Policy Options“(2021), at page 33

Athe MTP Amendment Act 2021. Dr. Harsh Vardhan (who was, at thetime, the Union Minister for Health and Family Welfare) stated that thepurpose of extending the upper gestational limit was to strengthen accessto comprehensive abortion care,[60] especially for special categories ofwomen.[61] Elaborating on the prevailing circumstances, the Union Ministerfor Health and Family Welfare stated that “26 petitions have been filedBin the Supreme Court and over hundred petitions have been filed beforeHigh Courts”, seeking permission for aborting pregnancies at gestationalage beyond the twenty week limit. In view of this, the “long-awaitedamendment” was introduced.[62] Responding to the objections raised onthe inclusion of woman and her partner instead of married womanCand her husband, the Minister opined that in keeping abreast with theevolution of social norms, the failure of contraceptive must encompassaccess to abortion facilities to all women.[63] Explaining the object behindthis amendment, the Minister observed that taking into consideration anever-changing society, rights of single women, widows, and sex workersmust be considered.[64] After the amendment, the scheme of the MTPDAct does not make distinction between married and unmarried womenfor the purpose of medical termination of pregnancies. The AmendmentBill was termed as “progressive legislation” introduced to upholdwomen’s right to live with dignity.[65]

59. statutory text concerned with significant aspect of theEright to life and enhancing access to reproductive rights should be giventhe widest construction. The legislative history of the MTP AmendmentAct 2021 provides insight into the hardship at which the amendmentaimed. During the Parliamentary debates concerning the MTPAmendment Act 2021, statistics were shared on the connection betweenFunsafe abortions and maternal deaths. The continuing crisis of unsafeabortions looms large in the parliamentary history of the MTP Act since1971. Unsafe abortions are leading but preventable cause of maternalmortality and morbidity. However, despite the enactment of the MTPAct in 1971, unsafe abortions continue to be the third leading cause ofmaternal mortality, and close to eight women in India die each day dueG60 Lok Sabha Debates, Seventeenth Series, Vol. VIII, Third Session, 2020/1041, No. 19 (17 March 2020), at page 271 (“Lok Sabha Debates, Seventeenth Series”)

61 Lok Sabha Debates, Seventeenth Series, at page 336

62 Lok Sabha Debates, Seventeenth Series, at page 272

63 Lok Sabha Debates, Seventeenth Series, at page 33764 Lok Sabha Debates, Seventeenth Series, at page 337H65 Lok Sabha Debates, Seventeenth Series, at page 274

to causes related to unsafe abortions.[66] Another study published in theBMJ Global Health points out to the grim statistics of unsafe abortions inIndia: between the years 2007 and 2011, an estimate of 67% of abortionscarried out were classified as unsafe.[67] It further observes thatdisadvantaged women in India, including women from lower socio-economic status, are at higher risk of undergoing unsafe abortions. Bydenying access to safe abortion services, restrictive abortion laws havebeen shown to increase the incident of unsafe abortions.[68] In view ofthe serious social malady due to illegal and unsafe abortions, the MTPAmendment Act 2021 intended to improve the availability and quality oflegal abortion care for women by liberalizing certain restrictive featuresof the unamended MTP Act and by increasing the legal limit of thegestational period within which abortions could be conducted from twentyto twenty-four weeks.

iv. The MTP Act as an aid of interpretation: Understanding“injury to mental health”

60. When interpreting sub-clause or part of statutory provision,the entire section should be read together with different sub-clausesbeing part of an integral whole.[69] In terms of Section 3(2)(b) of theMTP Act, not less than two RMPs must, in good faith, be of the opinionthat the continuation of the pregnancy of any woman who falls withinthe ambit of Rule 3B would involve (i) risk to her life; (ii) grave injuryto her physical health; or (iii) grave injury to her mental health.Alternatively, not less than two RMPs must, in good faith, be of theopinion that there is substantial risk of the child suffering from seriousphysical or mental abnormality, if born. Women who seek to avail of thebenefit under Rule 3B of the MTP Rules continue to be subject to therequirements of Section 3(2) of the MTP Act.

66 United Nations Population Fund, “Seeing the Unseen: The case for action in theneglected crisis of unintended pregnancy, State of World Populations’’ (2022)

67 Ryo Yokoe, Choudhury SS, et al., Unsafe abortion and abortion-related death among

1.8 million women in India, 4(3) BMJ Global Health (2019)

68 Jonathan Baerak, et al., Unintended pregnancy and abortion by income, region, andthe legal status of abortion: estimates from comprehensive model for 1990–2019, 8(9)Lancet Global Health (2020)

69 Balasinor Nagrik Co-operative Bank Ltd. v. Bababhai Shankerlal Pandya, (1987) 1SCC 606; Madanlal Fakirchand v. Shree Changdeo Sugar Mills Ltd., 1962 Supp (3)SCR 973

A61. One of the grounds on the basis of which termination ofpregnancy may be carried out is when the continuance of pregnancywould involve risk of injury to the mental health of the woman. Theexpression “grave injury to her physical or mental health” used in Section3(2) is used in an overarching and all-encompassing sense. The twoexplanations appended to Section 3(2) provide the circumstances underBwhich the anguish caused by pregnancy may be presumed to constitutea grave injury to the mental health of woman.

62. Courts in the country have permitted women to terminatetheir pregnancies where the length of the pregnancy exceeded twentyweeks (the outer limit for the termination of the pregnancy in theCunamended MTP Act) by expansively interpreting Section 5, whichpermitted RMPs to terminate pregnancies beyond the twenty week limitwhen it was necessary to save the life of the woman. In X v. Union ofIndia,[70]Mamta Verma v. Union of India,[71]Meera Santosh Pal v.Union of India,[72]Sarmishtha Chakrabortty v. Union of India,[73] thisDCourt permitted the termination of post twenty week pregnancies aftertaking into account the risk of grave injury to the mental health of apregnant woman by carrying the pregnancy to term.

63. The grounds for approaching courts differ and include variousreasons such as change in the circumstances of woman’s environmentEduring an ongoing pregnancy, including risk to life,[74] risk to mental health,[75]discovery of foetal anomalies,[76] late discovery of pregnancy in case ofminors and women with disabilities,[77] and pregnancies resulting fromsexual assault or rape.[78] These are illustrative situations thrown up by

70 (2017) 3 SCC 458F71 (2018) 14 SCC 28972 (2017) 3 SCC 462

73 (2018) 13 SCC 339

74 v. Union of India, (2018) 14 SCC 75; X v. Union of India, (2017) 3 SCC 458; MeeraSantosh Pal v. Union of India, (2017) 3 SCC 462; Tapasya Umesh Pisal v. Union ofIndia, (2018) 12 SCC 57; Mamta Verma v. Union of India, (2018) 14 SCC 28975 X v. Union of India, (2017) 3 SCC 458; Meera Santosh Pal v. Union of India, (2017)G3 SCC 462; Sarmishtha Chakrabortty v. Union of India, (2018) 13 SCC 339; MamtaVerma v. Union of India, (2018) 14 SCC 289; Z v. State of Bihar, (2018) 11 SCC 57276 v. Union of India, (2018) 14 SCC 75; Sarmishtha Chakrabortty v. Union of India,(2018) 13 SCC 339; Tapasya Umesh Pisal v. Union of India, (2018) 12 SCC 57; MamtaVerma v. Union of India, (2018) 14 SCC 28977 X v. Union of India, (2020) 19 SCC 806

H78 Z v. State of Bihar, (2018) 11 SCC 572; X v. Union of India, (2020) 19 SCC 806

cases which travel to the court. Although the rulings in these casesrecognized grave physical and mental health harms and the violation ofthe rights of women caused by the denial of the option to terminateunwanted pregnancies, the relief provided to the individual petitionersignificantly varied.

64. The expression “mental health” has wide connotation andmeans much more than the absence of mental impairment or mentalillness. The World Health Organization defines mental health as stateof “mental well-being that enables people to cope with the stresses oflife, realize their abilities, learn well and work well, and contribute totheir community.”[79] The determination of the status of one’s mental healthis located in one’s self and experiences within one’s environment andsocial context. Our understanding of the term mental health cannot beconfined to medical terms or medical language, but should be understoodin common parlance. The MTP Act itself recognizes the need to look atthe surrounding environment of the woman when interpreting injury toher health. Section 3(3) states that while interpreting “grave injury to herphysical or mental health”, account may be taken of the pregnant woman’sactual or reasonably foreseeable environment. The consideration of awoman’s “actual or reasonably foreseeable environment” becomespertinent, especially when determining the risk of injury to the mentalhealth of woman.

65. There have been numerous decisions of the High Courts wherea purposive interpretation is given to the phrase mental health as used inthe MTP Act. In High Court on its Own Motion v. State ofMaharashtra,[80] the High Court of Bombay correctly held that compellinga woman to continue any unwanted pregnancy violates woman’s bodilyintegrity, aggravates her mental trauma and has deleterious effect onthe mental health of the woman because of the immediate social, financialand other consequences flowing from the pregnancy.66. In Sidra Mehboob Shaikh v. State of Maharashtra,[81] theHigh Court of Bombay permitted the petitioner to undergo medicaltermination of her pregnancy on the ground that compelling her to continuewith her unwanted pregnancy would be oppressive, and would likely

79 World Health Organization, “Promoting mental health: concepts, emerging evidence,practice (Summary Report)’’ (2004)

80 2016 SCC OnLine Bom 8426

81 2021 SCC Online Bom 1839

Acause grave injury to her mental health. The petitioner, victim ofdomestic violence, had approached the court to allow her to undergo anabortion as she pleaded that she did not want to raise child in theabsence of financial and emotional support from her husband; and raisinga child on her own would be burdensome. The High Court observed that“mental state of person is continuum with good mental health beingBat one end and diagnosable mental illness at the opposite end. Therefore,mental health and mental illness, although sound similar, are not thesame.”[82]

67. We note the correct interpretation adopted in two otherjudgments from the Bombay High Court, where the Court permittedCunmarried petitioners to abort, after purposively construing the effectsof carrying an unwanted pregnancy on the mental health of woman. InXYZ v. State of Maharashtra,[83] an unmarried petitioner aged about 18years was allowed to terminate her pregnancy in the 26[th] week afterconsidering her socio-economic condition, and the impact of theDcontinuation of pregnancy on her mental health. In Siddhi VishwanathShelar v. State of Maharashtra,[84] twenty-three year old petitionercontended that she was not mentally ready to be an unwed mother andsought the termination of her pregnancy of approximately twenty-threeweeks. The Petitioner was engaged in consensual relationship but hadsince parted ways from her partner, and thus wanted to terminate theEunwanted pregnancy. While permitting the abortion, the High Court ofBombay observed that insisting upon continuance of pregnancy wouldinvolve grave injury to the petitioner’s health. The High Court tooknote of the woman’s submissions regarding her actual and foreseeableenvironment.Fv. Construing Rule 3B

68. By framing Rule 3B, the legislature intended to solve themischief, so to speak, of women being unable to access abortions whentheir lives underwent significant changes impacting their physical andmental health, and their decision to have child was impacted after theGlength of the pregnancy exceeded twenty weeks. The Minutes of theMeeting of the Expert Committee held on 22 June 2021 for deliberatingupon and drafting the MTP Rules dealt with, inter alia, category of

82 2021 SCC Online Bom 1839, at paragraph 22

83 Judgment dated 6 October 2021 in WP(L) 21977 of 2021 (Bombay High Court)H84 2020 SCC OnLine Bom 11672

women under Rule 3B. The members of the Expert Committee suggesteddifferent categories of women such as “survivors of sexual violence/rape; mentally challenged women, minors, women with disabilities; foetalanomalies; conception in lactational amenorrhea period; single women(such as unwed women (major), divorced and widowed, separatedwomen); women who are facing difficulties in contexts of humanitariansetting/ emergencies and/or natural disasters; women victims of domesticviolence/ gender-based violence etc.” The members of the ExpertCommittee urged the inclusion of women in Rule 3B, who often delayrevealing the pregnancy or making decisions as to its continuance, forvarious reasons.69. The common thread running through each category of womenmentioned in Rule 3B is that the woman is in unique and often difficultcircumstance, with respect to her physical, mental, social, or financialstate. All the different categories in Rule 3B represent women whoseek an abortion after twenty weeks either due to delay in recognizingpregnancy, or some other change in their environment impacting theirdecision on whether the pregnancy is wanted or unwanted. The lawrecognizes the myriad ways in which pregnancy may cause distress insuch situations and cause grave injury to her physical and mental health.It gives such women latitude in seeking out the termination of anunwelcome pregnancy by extending the gestational period up to whichthe termination is legally permissible.

70. Rule 3B(a) is based on an acknowledgement of the realitythat survivors of sexual assault, rape, or incest may face immense stigmaif and when they share the fact of their assault with others, includingfamily members. It is no secret that culture of shame surrounds sexualviolence in India. Survivors are often hesitant to speak about the violenceinflicted upon them. This is doubly the case with victims of incestuoussexual assault or rape, whose close relatives abuse their power andauthority over the woman and other family members oftentimes beingunwilling to believe that the perpetrator (that is to say, their relative) isguilty of sexual violence. Many survivors, including minors, may not evenbe aware that pregnancy is possible consequence of rape. Hence, thedelay in revealing the fact that man has raped them may lead to adelay in discovering the pregnancy. Alternatively, the woman in questionmay be unable to access medical facilities in timely fashion and maytherefore find herself unable to terminate the pregnancy before thecompletion of twenty weeks.

A71. Married women may also form part of the class of survivorsof sexual assault or rape. The ordinary meaning of the word ‘rape’ issexual intercourse with person, without their consent or against theirwill, regardless of whether such forced intercourse occurs in the contextof matrimony. woman may become pregnant as result of non-consensual sexual intercourse performed upon her by her husband. WeBwould be remiss in not recognizing that intimate partner violence is areality and can take the form of rape. The misconception that strangersare exclusively or almost exclusively responsible for sex- and gender-based violence is deeply regrettable one. Sex- and gender-basedviolence (in all its forms) within the context of the family has long formedCa part of the lived experiences of scores of women.

72. Existing Indian laws recognize various forms of familial violence– the Pre-Conception and Pre-Natal Diagnostic Techniques Act 1994criminalises the communication of the sex of the foetus to the pregnantwoman or her relatives. Section 498A of the IPC criminalises physical,Dmental, and emotional abuse. The Dowry Prohibition Act 1961criminalises the giving and taking of dowry (a form of economic andsocial violence). Physical abuse or sexual abuse by family members andfemale infanticide are also criminalized under the IPC. Marital assaultmerely forms part of long list of deeds that amount to violence in thecontext of the family.

73. It is not inconceivable that married women become pregnantas result of their husbands having “raped” them. The nature of sexualviolence and the contours of consent do not undergo transformationwhen one decides to marry. The institution of marriage does not influencethe answer to the question of whether woman has consented to sexualFrelations. If the woman is in an abusive relationship, she may face greatdifficulty in accessing medical resources or consulting doctors.

74. It is only by legal fiction that Exception 2 to Section 375 ofthe IPC removes marital rape from the ambit of rape, as defined inSection 375. Understanding “rape” under the MTP Act and the rulesGframed thereunder as including marital rape does not have the effect ofstriking down Exception 2 to Section 375 of the IPC or changing thecontours of the offence of rape as defined in the IPC. Since the challengeto Exception 2 to Section 375 of the IPC is pending consideration beforea different Bench of this Court, we would leave the constitutional validityHto be decided in that or any other appropriate proceeding.

75. Notwithstanding Exception 2 to Section 375 of the IPC,[85] themeaning of the words “sexual assault” or “rape” in Rule 3B(a) includesa husband’s act of sexual assault or rape committed on his wife. Themeaning of rape must therefore be understood as including marital rape,solely for the purposes of the MTP Act and any rules and regulationsframed thereunder. Any other interpretation would have the effect ofcompelling woman to give birth to and raise child with partner whoinflicts mental and physical harm upon her.

76. In order to avail the benefit of Rule 3B(a), the woman neednot necessarily seek recourse to formal legal proceedings to prove thefactum of sexual assault, rape or incest. Neither Explanation 2 to Section3(2) nor Rule 3B(a) require that the offender be convicted under theIPC or any other criminal law for the time being in force before thepregnant woman can access an abortion. Further, there is no requirementthat an FIR must be registered or the allegation of rape must be provedin court of law or some other forum before it can be considered truefor the purposes of the MTP Act. Such requirement would be contraryto the object and purpose of the MTP Act. In fact, Explanation 2 triggersthe legal presumption as to mental trauma “where any pregnancy isalleged by the pregnant woman to have been caused by rape.”

77. Rule 3B(b) includes minors within the category of womenwho may terminate their pregnancy up to twenty-four weeks. They havebeen included in the list of special categories of women becauseadolescents who engage in consensual sexual activity may be unawarethat sexual intercourse often results in pregnancy or be unable to identifythe signs of pregnancy. The Protection of Children from SexualOffences Act 2012[86] is gender neutral and criminalizes sexual activityby those below the age of eighteen. Under the POCSO Act, factualconsent in relationship between minors is immaterial. The proscriptioncontained in the POCSO Act does not – in actuality – prevent adolescentsfrom engaging in consensual sexual activity. We cannot disregard thetruth that such activity continues to take place and sometimes leads to

85 See Exception 2 to Section 375, IPC – Sexual intercourse by man with his own wife,the wife not being under fifteen years of age, is not rape. It is to be noted that inIndependent Thought v. Union of India (2017) 10 SCC 800, this Court read Exception2 to Section 375 down such that the words “eighteen years” replaced the words “fifteenyears” thereby raising the age of consent to eighteen years, notwithstanding the maritalstatus of the woman.

86 “POCSO Act”

Aconsequences such as pregnancy. The legislature was no doubt alive tothis fact when it included adolescents within the ambit of Rule 3B of theMTP Rules.

78. The absence of sexual health education in the country meansthat most adolescents are unaware of how the reproductive systemBfunctions as well as how contraceptive devices and methods may bedeployed to prevent pregnancies. The taboos surrounding pre-maritalsex prevent young adults from attempting to access contraceptives. Thesame taboos mean that young girls who have discovered the fact thatthey are pregnant are hesitant to reveal this to their parents or guardians,who play crucial role in accessing medical assistance and intervention.C

79. Furthermore, Section 19(1) of the POCSO Act requires thatany person, including child, who has knowledge of the commission ofan offence punishable under the POCSO Act, or an apprehension thatsuch an offence may be committed, is mandatorily required to provideinformation to the Special Juvenile Police Unit or the local police. SectionD19(2) of the POCSO Act stipulates that every such report under Section19(1) shall be ascribed an entry number and recorded in writing, readover to the informant, and entered in book to be kept by the police unit.Failure to report, as mandated by Section 19, is punishable offenceunder Section 21 of the POCSO Act. Neither the POCSO Act nor theEProtection of Children from Sexual Offences Rules 2012 prescribe atemplate or format for the report mandated under Section 19(1).

80. When minor approaches an RMP for medical terminationof pregnancy arising out of consensual sexual activity, an RMP isobliged under Section 19(1) of the POCSO Act to provide informationFpertaining to the offence committed, to the concerned authorities. Anadolescent and her guardian may be wary of the mandatory reportingrequirement as they may not want to entangle themselves with the legalprocess. Minors and their guardians are likely faced with two options –one, approach an RMP and possibly be involved in criminal proceedingsunder the POCSO Act, or two, approach an unqualified doctor for aGmedical termination of the pregnancy. If there is an insistence on thedisclosure of the name of the minor in the report under Section 19(1) ofPOCSO, minors may be less likely to seek out RMPs for safe terminationof their pregnancies under the MTP Act.

81. To ensure that the benefit of Rule 3B(b) is extended to allHwomen under 18 years of age who engage in consensual sexual activity,

it is necessary to harmoniously read both the POCSO Act and the MTPAct. For the limited purposes of providing medical termination ofpregnancy in terms of the MTP Act, we clarify that the RMP, only onrequest of the minor and the guardian of the minor, need not disclose theidentity and other personal details of the minor in the information providedunder Section 19(1) of the POCSO Act. The RMP who has providedinformation under Section 19(1) of the POCSO Act (in reference to aminor seeking medical termination of pregnancy under the MTP Act)is also exempt from disclosing the minor’s identity in any criminalproceedings which may follow from the RMP’s report under Section19(1) of the POCSO Act. Such an interpretation would prevent anyconflict between the statutory obligation of the RMP to mandatorily reportthe offence under the POCSO Act and the rights of privacy andreproductive autonomy of the minor under Article 21 of the Constitution.It could not possibly be the legislature’s intent to deprive minors of safeabortions.

82. As opposed to consensual sexual activity among adolescents,minors are often subjected to sexual abuse by strangers or familymembers. In such cases, minor girls may (due to their tender age) beunaware of the nature of abuse the abuser or rapist is subjecting themto. In such cases, the guardian of minor girls may belatedly discover thefact of the pregnancy, necessitating the leeway granted by Rule 3B.

83. Rule 3B(d) includes women with physical disabilities withinthe special category of women. They may face additional complicationsarising from their disabilities and be unable to carry the pregnancy toterm. They may also decide against carrying their pregnancy to termdue to any personal difficulties (mental or physical) which may arisefrom their disability, either directly or indirectly.

84. Women who are mentally ill (including “mental retardation”)are covered by Rule 3B(e). It extends to all categories of women whohave mental illness. Women with mental illnesses may realize the fact oftheir pregnancy or determine that they do not want to carry it to term,later than usual. Further, men often sexually assault women with mentalillnesses, especially if they have speech or communication disabilities, orreside in psychiatric care facilities. Their speech / communication disabilitymay inhibit them from expressing that somebody has raped them. Thismay lead to delay in the discovery of the pregnancy and its termination.

AThis was found to be the case in X v. Union of India,[87] where womanwith Down’s Syndrome had been raped by an unknown person. Herguardian discovered the pregnancy after the passage of twenty weeks.

85. Rule 3B(f) includes that class of women where foetal anomalieshave substantial risk of being incompatible with life or where the child,Bif born, may suffer from physical or mental “abnormalities” and beseriously handicapped.

86. Rule 3B(g) comprehends within its fold change in the materialcircumstances of the pregnant woman by accounting for pregnant womenin “humanitarian settings or disaster or emergency situations.” RefugeesCwho have had to flee their homes for any reason or those who findthemselves the victims of natural or man-made disaster, or otherwisein an emergency would fall within the ambit of this rule. They may notrealise that they are pregnant due to difficulty in accessing medicalfacilities. For instance, in Siddhi Vishwanath Shelar (supra), thepetitioner was unable to visit doctor due to the lockdown instituted byDthe government in light of the COVID-19 pandemic and became awareof her pregnancy only after twenty weeks had elapsed.

87. Further, the decision to give birth to and raise child isnecessarily informed by one’s material circumstances. By this, we meanthe situational, social, and financial circumstances of woman or herEfamily may be relevant to her decision to carry the pregnancy to term.Those who fall victim to emergencies or disasters may unexpectedlyfind themselves without home or separated from their families. Theymay have lost loved ones. Their livelihood may be adversely affectedand they may undergo other deeply impactful changes in their lives, bothFmaterial and psychological. The possibility that they have suffered graveinjuries which alter their mobility or quality of life cannot be discounted.The myriad changes that may take place in the aftermath of disaster,emergency, or humanitarian crisis cannot be exhaustively listed orenvisaged. Each woman’s circumstances are unique and we have merelylisted (by way of illustration) some of the many potential repercussionsGof the catastrophes accounted for in Rule 3B(g).

88. woman in such situations may have decided to have childbefore the emergency or disaster which changed her materialcircumstances. However, this change may understandably impact each

woman’s evaluation of her ability to raise child as well as her willingnessto carry the pregnancy to term. While many women may decide to carrythe pregnancy to term, others may no longer find the pregnancy to be aviable or practical option. It is ultimately the prerogative of each womanto evaluate her life and arrive at the best course of action, in view of thechanges to her material circumstances.

89. Rule 3B(c) states that “change in the marital status duringthe ongoing pregnancy (widowhood and divorce)” renders women eligiblefor termination of their pregnancy under Section 3(2)(b). The impact ofthe continuance of an unwanted pregnancy on woman’s physical ormental health should take into consideration various social, economic,and cultural factors operating in her actual or reasonably foreseeableenvironment, as provided in Section 3(3). The rationale behind Rule 3B(c)is comparable to the rationale for Rule 3B(g) i.e., change in woman’smaterial circumstances during the ongoing pregnancy.

90. Rule 3B(c) is based on the broad recognition of the fact that achange in the marital status of woman often leads to change in hermaterial circumstances. change in material circumstance during theongoing pregnancy may arise when married woman divorces herhusband or when he dies, as recognized by the examples provided inparenthesis in Rule 3B(c). The fact that widowhood and divorce arementioned in brackets at the tail end of Rule 3B(c) does not hinder ourinterpretation of the rule because they are illustrative.

91. change in material circumstance may also result when awoman is abandoned by her family or her partner. When womanseparates from or divorces her partner, it may be that she is in different(and possibly less advantageous) position financially. She may no longerhave the financial resources to raise child. This is of special concern towomen who have opted to be homemaker thereby forgoing an incomeof their own. Moreover, woman in this situation may not be preparedto raise child as single parent or by coparenting with her formerpartner. Similar consequences may follow when woman’s partner dies.

92. Women may undergo sea change in their lives for reasonsother than separation with their partner (Rule 3B(c)), detection offoetal “abnormalities” (Rule 3B(f)), or disaster or emergency (Rule3B(g)). They may find themselves in the same position (socially, mentally,financially, or even physically) as the other categories of women

Aenumerated in Rule 3B but for other reasons. For instance, it is notunheard of for woman to realise that she is pregnant only after thepassage of twenty weeks.[88] Other examples are if woman loses herjob and is no longer financially secure, or if domestic violence isperpetrated against her,[89] or if she suddenly has dependents to support.Moreover, woman may suddenly be diagnosed with an acute or chronicBor life-threatening disease, which impacts her decision on whether tocarry the pregnancy to term. If Rule 3B(c) was to be interpreted suchthat its benefits extended only to married women, it would perpetuatethe stereotype and socially held notion that only married women indulgein sexual intercourse, and that consequently, the benefits in law ought toCextend only to them. This artificial distinction between married and singlewomen is not constitutionally sustainable. The benefits in law extendequally to both single and married women.93. recognition of the fact that there may be change in awoman’s material circumstance animates Rule 3B(c), Rule 3B(g) andDRule 3B(f). However, Rule 3B does not enumerate all the potentialchanges that woman’s material circumstances may undergo. It merelyspecifies some of the potential changes to woman’s materialcircumstances, in sub-rules (c), (f) and (g). From the object and purposeof the MTP Act, its overall scheme, and the categories of women specifiedin Rule 3B, it is evident that it was not the intention of the legislatureEtorestrict the benefit of Section 3(2)(b) and Rule 3B only to women whomay be confronted with material alteration in the circumstances oftheir lives in the limited situations enumerated in Rule 3B. Rather, thebenefit granted by Rule 3B must be understood as extending to all womenwho undergo change of material circumstances.F

94. It is not possible for either the legislature or the courts to listeach of the potential events which would qualify as change of materialcircumstances. Suffice it to say that each case must be tested againstthis standard with due regard to the unique facts and circumstances thata pregnant woman finds herself in.G

F. Constitutional values animating the interpretation of theMTP Act and the MTP Rules

88 Siddhi Vishwanath Shelar v. State of Maharashtra, 2020 SCC OnLine Bom 11672H89 Sidra Mehboob Shaikh v. State of Maharashtra, 2021 SCC OnLine Bom 1839

95. Certain constitutional values, such as the right to reproductiveautonomy, the right to live dignified life, the right to equality, and theright to privacy have animated our interpretation of the MTP Act andthe MTP Rules. brief discussion of these values is undertaken below.

i. The right to reproductive autonomy

96. The ambit of reproductive rights is not restricted to the rightof women to have or not have children. It also includes the constellationof freedoms and entitlements that enable woman to decide freely onall matters relating to her sexual and reproductive health. Reproductiverights include the right to access education and information aboutcontraception and sexual health, the right to decide whether and whattype of contraceptives to use, the right to choose whether and when tohave children, the right to choose the number of children, the right toaccess safe and legal abortions, and the right to reproductive healthcare.Women must also have the autonomy to make decisions concerningthese rights, free from coercion or violence.

97. Zakiya Luna has, in 2020 publication, argued that reproductionis both biological and political.[90] According to Luna, it is biological sincephysical bodies reproduce, and it is political since the decision on whetherto reproduce or not is not solely private matter. This decision is intimatelylinked to wider political, social, and economic structures. woman’srole and status in family, and society generally, is often tied to childbearingand ensuring the continuation of successive generations.

98. To this, we may add that woman is often enmeshed in complexnotions of family, community, religion, and caste. Such external societalfactors affect the way woman exercises autonomy and control overher body, particularly in matters relating to reproductive decisions. Societalfactors often find reinforcement by way of legal barriers restricting awoman’s right to access abortion. The decision to have or not to have anabortion is borne out of complicated life circumstances, which only thewoman can choose on her own terms without external interference orinfluence. Reproductive autonomy requires that every pregnant womanhas the intrinsic right to choose to undergo or not to undergo abortionwithout any consent or authorization from third party.

90 ZAKIYA LUNA, REPRODUCTIVE RIGHTS AS HUMAN RIGHTS: WOMEN OF COLOR AND FIGHT FORREPRODUCTIVE JUSTICE (NYU Press, 2020)

A99. The right to reproductive autonomy is closely linked with theright to bodily autonomy. As the term itself suggests, bodily autonomy isthe right to take decisions about one’s body. The consequences of anunwanted pregnancy on woman’s body as well as her mind cannot beunderstated. The foetus relies on the pregnant woman’s body forsustenance and nourishment until it is born. The biological process ofBpregnancy transforms the woman’s body to permit this. The womanmay experience swelling, body ache, contractions, morning sickness,and restricted mobility, to name few of host of side effects. Further,complications may arise which pose risk to the life of the woman. Amere description of the side effects of pregnancy cannot possibly doCjustice to the visceral image of forcing woman to continue with anunwanted pregnancy. Therefore, the decision to carry the pregnancy toits full term or terminate it is firmly rooted in the right to bodily autonomyand decisional autonomy of the pregnant woman.

100. In K S Puttaswamy v. Union of India,[91]a nine-judge benchDof this Court recognized the right to privacy as constitutionally protectedright under Article 21 of the Constitution. In Puttaswamy (supra), thisCourt held that the right to privacy enables individuals to retain andexercise autonomy over the body and mind. The autonomy of theindividual was defined as “the ability to make decision on vital matters ofconcern to life.”[92] The judgement delivered on behalf of four judgesEdescribed the right to privacy in the following terms:

“297. … Privacy postulates the reservation of private space forthe individual, described as the right to be let alone. The conceptis founded on the autonomy of the individual. The ability of anindividual to make choices lies at the core of the human personality.FThe notion of privacy enables the individual to assert andcontrol the human element which is inseparable from thepersonality of the individual. The inviolable nature of thehuman personality is manifested in the ability to makedecisions on matters intimate to human life. The autonomyGof the individual is associated over matters which can bekept private. These are concerns over which there is alegitimate expectation of privacy. The body and the mindare inseparable elements of the human personality. The

91 (2017) 10 SCC 1

H92 KS Puttaswamy v. Union of India (2017) 10 SCC 1, at paragraph 298 (“Puttaswamy”)

integrity of the body and the sanctity of the mind can existon the foundation that each individual possesses aninalienable ability and right to preserve private space inwhich the human personality can develop. Without the abilityto make choices, the inviolability of the personality would be indoubt.”

(emphasis supplied)

101. Importantly, Puttaswamy (supra) also deals with facets ofreproductive autonomy. Chelameshwar, J. held that “woman’s freedomof choice whether to bear child or abort her pregnancy are areaswhich fall in the realm of privacy.”[93] This Court recognized the right tobodily integrity as an important facet of the right to privacy. Puttaswamy(supra) considered Suchita Srivastava v. ChandigarhAdministration[94]to reiterate that the statutory right of woman toundergo termination of pregnancy under the MTP Act is relatable to theconstitutional right to make reproductive choices under Article 21 of theConstitution.[95]102. In Suchita Srivastava (supra) this Court explicitly recognizedthe concept of reproductive autonomy. In this case, the victim, anorphaned woman of around 19 years, with mental retardation, becamepregnant as result of rape that took place while she was an inmate ata government-run welfare institution. After the discovery of herpregnancy, the Chandigarh Administration approached the High Courtof Punjab and Haryana seeking approval for the termination of herpregnancy. The High Court constituted an expert body to conduct anenquiry into the facts. The expert body recorded that the victim hadexpressed her willingness to bear the child and accordingly recommendedthe continuation of the pregnancy. However, the High Court directedthe termination of the pregnancy on the ground that the victim wasmentally incapable of making an informed decision on her own.

103. three-judge Bench of this Court disagreed with the HighCourt’s decision. In judgment authored by K Balakrishnan, C.J., thisCourt emphasized that the consent of the pregnant woman is an essentialrequirement to proceed with the termination of pregnancy under theMTP Act. It was held that the state administration cannot claim

93 Puttaswamy, at paragraph 37394 (2009) 9 SCC 1

95 Puttaswamy, at paragraph 82

Aguardianship of the woman as she was major. It was further held thatthe woman only had “mild mental retardation” and was thereforecompetent to give her consent in terms of Section 3(4)(a) of the MTPAct. This Court concluded that the state must respect the reproductiverights of women with “mental retardation” with regard to decisions aboutterminating their pregnancy. In the process, this Court recognized that aBwoman’s right to reproductive autonomy is dimension of Article 21 ofthe Constitution:

“22. There is no doubt that woman’s right to make reproductivechoices is also dimension of “personal liberty” as understoodunder Article 21 of the Constitution of India. It is important toCrecognise that reproductive choices can be exercised to procreateas well as to abstain from procreating. The crucial considerationis that woman’s right to privacy, dignity and bodily integrity shouldbe respected. This means that there should be no restrictionwhatsoever on the exercise of reproductive choices such as aDwoman’s right to refuse participation in sexual activity oralternatively the insistence on use of contraceptive methods.Furthermore, women are also free to choose birth control methodssuch as undergoing sterilisation procedures. Taken to their logicalconclusion, reproductive rights include woman’s entitlement tocarry pregnancy to its full term, to give birth and to subsequentlyEraise children. However, in the case of pregnant women there isalso “compelling State interest” in protecting the life of theprospective child. Therefore, the termination of pregnancy isonly permitted when the conditions specified in the applicablestatute have been fulfilled. Hence, the provisions of the MTP Act,F1971 can also be viewed as reasonable restrictions that have beenplaced on the exercise of reproductive choices.”

104. Suchita Srivastava (supra) rightly recognised that the rightof women to make reproductive choices is dimension of personal libertyunder Article 21. It held that reproductive rights include woman’sGentitlement to carry the pregnancy to full term, give birth, and raisechildren. More importantly, it also recognised that the right to reproductivechoice also includes the right not to procreate. In doing so, it situated thereproductive rights of women within the core of constitutional rights.

105. Decisional autonomy is an integral part of the right to privacy.HDecisional autonomy is the ability to make decisions in respect of intimate

relations.[96] In Puttaswamy (supra) this Court held that personal aspectsof life such as family, marriage, procreation, and sexual orientation areall intrinsic to the dignity of the individual.[97] The right to privacy safeguardsand respects the decisional autonomy of the individual to exercise intimatepersonal choices and control over the vital aspects of their body and life.In Common Cause v. Union of India,[98] this Court observed that rightto privacy protects decisional autonomy in matters related to bodilyintegrity:

“441. The right to privacy resides in the right to liberty and in therespect of autonomy. The right to privacy protects autonomy inmaking decisions related to the intimate domain of death as wellas bodily integrity. Few moments could be of as much importanceas the intimate and private decisions that we are faced regardingdeath. Continuing treatment against the wishes of patient is notonly violation of the principle of informed consent, but also ofbodily privacy and bodily integrity that have been recognised as afacet of privacy by this Court.”

106. The right to decisional autonomy also means that womenmay choose the course of their lives. Besides physical consequences,unwanted pregnancies which women are forced to carry to term mayhave cascading effects for the rest of her life by interrupting hereducation, her career, or affecting her mental well-being.

107. In High Court on its Own Motion (supra), an under-trialprisoner requisitioned for obtaining permission to terminate her 4-monthpregnancy to judge of the City Civil & Sessions Court visiting theprison. The woman stated that it would be too difficult for her to maintainanother child in addition to her five-month-old child, who was sufferingfrom various malaises such as epilepsy, hernia and other illnesses. Insuch circumstances, the woman stated that it was difficult for her tomaintain and take care of another child. The judge forwarded letter tothe High Court of Bombay along with the woman’s requisition forinformation and further action, which was converted into suo motoPIL. The High Court referred to the relevant provisions of the MTP Actto observe that mental health can deteriorate if the pregnancy is forcedor unwanted:

96 Puttaswamy, at paragraph 248

97 Puttaswamy, at paragraph 298

98 (2018) 5 SCC 1

A“14. woman’s decision to terminate pregnancy is not frivolousone. Abortion is often the only way out of very difficult situationfor woman. An abortion is carefully considered decision takenby woman who fears that the welfare of the child she alreadyhas, and of other members of the household that she is obliged tocare for with limited financial and other resources, may beBcompromised by the birth of another child. These are decisionstaken by responsible women who have few other options. Theyare women who would ideally have preferred to prevent anunwanted pregnancy, but were unable to do so. If woman doesnot want to continue with the pregnancy, then forcing her to do soCrepresents violation of the woman’s bodily integrity andaggravates her mental trauma which would be deleterious to hermental health.”

108. woman can become pregnant by choice irrespective ofher marital status. In case the pregnancy is wanted, it is equally sharedDby both the partners. However, in case of an unwanted or incidentalpregnancy, the burden invariably falls on the pregnant woman affectingher mental and physical health. Article 21 of the Constitution recognizesand protects the right of woman to undergo termination of pregnancyif her mental or physical health is at stake. Importantly, it is the womanalone who has the right over her body and is the ultimate decision-makerEon the question of whether she wants to undergo an abortion.

ii. The right to dignity

109. The right to dignity encapsulates the right of every individualto be treated as self-governing entity having intrinsic value. It meansFthat every human being possesses dignity merely by being human, andcan make self-defining and self-determining choices. Dignity has beenrecognized as core component of the right to life and liberty underArticle 21.

110. If women with unwanted pregnancies are forced to carryGtheir pregnancies to term, the state would be stripping them of the rightto determine the immediate and long-term path their lives would take.Depriving women of autonomy not only over their bodies but also overtheir lives would be an affront to their dignity. The right to choose foroneself – be it as significant as choosing the course of one’s life or asmundane as one’s day-to-day activities – forms part of the right to

dignity. It is this right which would be under attack if women were forcedto continue with unwanted pregnancies.

111. In Kesavananda Bharati v. State of Kerala,[99] it was heldthat dignity forms part of the basic structure of the Constitution. Suchis its fundamental value in our legal system - the concept of dignityforms the very foundation to the Constitution and the rights enshrined init. Dignity inheres in every individual and is an inalienable aspect ofone’s humanity.

112. In Francis Coralie Mullin v. Administrator, UnionTerritory of Delhi,[100] two-judge bench of this Court was dealing withthe rights of detenus under the Conservation of Foreign Exchange andPrevention of Smuggling Activities Act. This Court recognized that theright to dignity is an essential part of the right to life under Article 21 ofthe Constitution. It was observed:

“8. … We think that the right to life includes the right to live withhuman dignity and all that goes along with it, namely, the barenecessaries of life such as adequate nutrition, clothing and shelterand facilities for reading, writing and expressing oneself in diverseforms, freely moving about and mixing and commingling with fellowhuman beings. Of course, the magnitude and content of thecomponents of this right would depend upon the extent of theeconomic development of the country, but it must, in any view ofthe matter, include the right to the basic necessities of life andalso the right to carry on such functions and activities as constitutethe bare minimum expression of the human-self. Every act whichoffends against or impairs human dignity would constitutedeprivation pro tanto of this right to live and it would have to be inaccordance with reasonable, fair and just procedure establishedby law which stands the test of other fundamental rights.”

113. In Puttaswamy (supra) one of us (Dr. Y Chandrachud, J.)emphasized the interlinkage between privacy, dignity, and liberty asfollows:

“298. Privacy of the individual is an essential aspect of dignity.Dignity has both an intrinsic and instrumental value. As an intrinsicvalue, human dignity is an entitlement or constitutionally protected

99 (1973) 4 SCC 225100 (1981) 1 SCC 608

DEF

Ainterest in itself. In its instrumental facet, dignity and freedom areinseparably intertwined, each being facilitative tool to achievethe other. The ability of the individual to protect zone of privacyenables the realisation of the full value of life and liberty. Libertyhas broader meaning of which privacy is subset. All libertiesmay not be exercised in privacy. Yet others can be fulfilled onlyBwithin private space. Privacy enables the individual to retain theautonomy of the body and mind. The autonomy of the individual isthe ability to make decisions on vital matters of concern to life.Privacy has not been couched as an independent fundamentalright. ... The intersection between one’s mental integrity andCprivacy entitles the individual to freedom of thought, the freedomto believe in what is right, and the freedom of self-determination.When these guarantees intersect with gender, they create privatespace which protects all those elements which are crucial to genderidentity. The family, marriage, procreation and sexual orientationare all integral to the dignity of the individual. Above all, the privacyDof the individual recognises an inviolable right to determine howfreedom shall be exercised. … Dignity cannot exist withoutprivacy. Both reside within the inalienable values of life, libertyand freedom which the Constitution has recognised.”

114. In Navtej Singh Johar (supra), this Court read down Section377 of the IPC insofar as it criminalized consensual sexual conductbetween adults of same sex. Importantly, this Court also recognised thatthe members of the LGBTQ+ community are entitled to full range ofconstitutional rights protected under the Constitution, including the rightto dignity. Dipak Misra, CJ indicated the importance of dignity:

“144. Dignity is that component of one’s being without whichsustenance of his/her being to the fullest or completest isinconceivable. In the theatre of life, without possession of theattribute of identity with dignity, the entity may be allowed entryto the centre stage but would be characterised as spinelessentity or, for that matter, projected as ruling king without thesceptre. The purpose of saying so is that the identity of everyindividual attains the quality of an “individual being” only if he/shehas the dignity. Dignity while expressive of choice is averseto creation of any dent. When biological expression, be itan orientation or optional expression of choice, is faced

with impediment, albeit through any imposition of law, theindividual’s natural and constitutional right is dented. Sucha situation urges the conscience of the final constitutionalarbiter to demolish the obstruction and remove theimpediment so as to allow the full blossoming of the naturaland constitutional rights of individuals. This is the essenceof dignity and we say, without any inhibition, that it is ourconstitutional duty to allow the individual to behave andconduct himself/herself as he/she desires and allow him/her to express himself/herself, of course, with the consentof the other. That is the right to choose without fear. It hasto be ingrained as necessary prerequisite that consent isthe real fulcrum of any sexual relationship.”

(emphasis supplied)

115. In Independent Thought v. Union of India,[101] this Courtheld that sexual intercourse with girl below 18 years of age is raperegardless of whether or not she is married. This Court emphaticallyrejected the argument that the state had compelling state interest inpreserving the institution of marriage (even child marriages), and observedthat the impact of Exception 2 to Section 375 IPC has to be consideredwith the social realities of the present. It is important to note that thebroader issue of marital rape of adult women was not dealt with sincethe issue was not specifically raised in that case. In the context of rightto dignity, it was observed:”90. We must not and cannot forget theexistence of Article 21 of the Constitution which gives fundamentalright to girl child to live life of dignity. The documentary materialplaced before us clearly suggests that an early marriage takes away theself-esteem and confidence of girl child and subjects her, in sense, tosexual abuse. Under no circumstances can it be said that such girlchild lives life of dignity. The right of girl child to maintain her bodilyintegrity is effectively destroyed by traditional practice sanctified byIPC. Her husband, for the purposes of Section 375 IPC, effectively hasfull control over her body and can subject her to sexual intercourse withouther consent or without her willingness since such an activity would notbe rape. Anomalously, although her husband can rape her but he cannotmolest her for if he does so he could be punished under the provisions ofIPC. This was recognised by LCI in its 172nd Report but was not

101 (2017) 10 SCC 800

Acommented upon. It appears therefore that different and irrationalstandards have been laid down for the treatment of the girl child by herhusband and it is necessary to harmonise the provisions of various statutesand also harmonise different provisions of IPC inter se.”

116. In the context of abortion, the right to dignity entailsBrecognising the competence and authority of every woman to takereproductive decisions, including the decision to terminate the pregnancy.Although human dignity inheres in every individual, it is susceptible toviolation by external conditions and treatment imposed by the state. Theright of every woman to make reproductive choices without undueinterference from the state is central to the idea of human dignity.CDeprivation of access to reproductive healthcare or emotional andphysical well-being also injures the dignity of women.

G. Purposive interpretation of Rule 3B furthers theconstitutional mandate

D117. Where two constructions of provision are possible, courtsought to prefer the construction which gives effect to the provision ratherthan rendering the provision inoperative.[102] Courts must prefer aconstruction which is in favour of the constitutionality of the statutoryprovision.[103] narrow, strict interpretation of statutory provision whichruns counter to the constitutional mandate should be avoided.

118. It seems to us that to give Rule 3B restrictive and narrowinterpretation would render it perilously close to holding it unconstitutional,for it would deprive unmarried women of the right to access safe andlegal abortions between twenty and twenty-four weeks if they face achange in their material circumstances, similar to married women.F

119. The Constitution Bench in Express Newspapers Ltd v.Union of India,[104] gave wider meaning to Section 9(1) of the WorkingJournalists (Condition of Service) and Miscellaneous Provision Act1955,[105] to avoid rendering it unconstitutional. The Working Journalists

102 JUSTICE G.P SINGH, G.P. SINGH: PRINCIPLES OF STATUTORY INTERPRETATION, (LEXISNEXIS,G2016), at page 48; CIT v. S. Teja Singh, AIR 1959 SC 352; M. Pentiah v. VeeramallappaMuddal, 1961 (2) SCR 295; Tinsukhia Electric Supply Co. Ltd. v. State of Assam,(1989) 3 SCC 709

103 K.P. Varghese v. ITO, (1981) 4 SCC 173; M.L. Kamra v. Chairman-cum-ManagingDirector, New India Assurance Co. Ltd, 1992 SCR(1) 220104 1959 SCR 12, AIR 1958 SC 578H105 “Working Journalists Act”

Act provides for the relevant criteria for the fixation of the rate of wages.The petitioners in that case argued that the Working Journalists Actimposed unreasonable restrictions on the freedom to carry on businessinter alia on the ground that the capacity of the industry to pay was notset out as one of the criteria in the fixation of wages by the Wage Board.This Court held that the capacity of the industry to pay was one of theessential circumstances which should be taken into consideration forfixation of rate of wages, higher than the bare subsistence or minimumwage.

120. In Githa Hariharan v. Reserve Bank of India,[106] three-Judge Bench of this Court had to interpret the term “after him” in Section6(a) of the Hindu Minority and Guardianship Act 1956, which providesthat the natural guardian of Hindu minor, in the case of boy or anunmarried girl, is “the father and after him the mother.” This Courtinterpreted “after him” to mean “in the absence of” to further theconstitutional mandate of gender equality as enshrined in Article 14 andArticle 15 of the Constitution. This Court stated that narrowly interpretingthe phrase to mean disqualification of mother to act as guardianduring the lifetime of the father, would have made the sectionunconstitutional for violating the constitutional prohibition againstdiscrimination on the grounds of sex.

121. The object of Section 3(2)(b) of the MTP Act read with Rule3B is to provide for abortions between twenty and twenty-four weeks,rendered unwanted due to change in the material circumstances ofwomen. In view of the object, there is no rationale for excluding unmarriedor single women (who face change in their material circumstances)from the ambit of Rule 3B. narrow interpretation of Rule 3B, limitedonly to married women, would render the provision discriminatory towardsunmarried women and violative of Article 14 of the Constitution. Article14 requires the state to refrain from denying to any person equality beforethe law or equal protection of laws. Prohibiting unmarried or singlepregnant women (whose pregnancies are between twenty and twenty-four weeks) from accessing abortion while allowing married women toaccess them during the same period would fall foul of the spirit guidingArticle 14. The law should not decide the beneficiaries of statute basedon narrow patriarchal principles about what constitutes “permissible sex”,which create invidious classifications and excludes groups based on their

Apersonal circumstances. The rights of reproductive autonomy, dignity,and privacy under Article 21 give an unmarried woman the right of choiceon whether or not to bear child, on similar footing of marriedwoman.

122. In view of the purposive interpretation accorded to Rule 3B,Bwe are not required to adjudicate upon its constitutional validity.

H. India’s obligations under international law

123. Article 51 of the Constitution requires the state to fosterrespect for international law and treaty obligations in the dealings oforganised people with one another. The Protection of Human RightsCAct 1993 recognises and incorporates international conventions andtreaties as part of Indian human rights law.[107] International human rightsnorms contained in treaties and covenants ratified by India are bindingon the state to the extent that they elucidate and effectuate thefundamental rights guaranteed by the Constitution.[108]

124. Article 6 of the International Covenant on Civil and PoliticalRights recognises and protects the inherent right to life of all humanbeings. The UN Human Rights Committee has remarked that, in termsof Article 6, State Parties have the responsibility to provide safe, legal,and effective access to abortion.[109] Further, it was suggested that StateEParties should disseminate quality and evidence-based information andeducation about sexual and reproductive health to prevent stigmatisationof women and girls seeking abortion.

125. India has also ratified the International Covenant on Economic,Social and Cultural Rights,[110] which enumerates in detail the right toFmental and physical health. The Committee on Economic, Social andCultural Rights in their comment on Article 12 of ICESCR has observedthat the right to sexual and reproductive health is an integral part of theright to the highest attainable physical and mental health.[111]

107 Section 2(1)(d), Protection of Human Rights Act 1993108 People’s Union of Civil Liberties v. Union of India, (1997) 3 SCC 433G109 Human Rights Committee, General Comment No. 36 (2018) on article 6 of theInternational Covenant on Civil and Political Rights, on the right to life, CCPR/C/GC/36 (30 October 2018)110 “ICESCR”

111 Economic and Social Council, General Comment No. 22 (2016) on the right to sexualand reproductive health (article 12 of the International Covenant on Economic, SocialHand Cultural Rights), E/C.12/GC/22 (2 May 2016)

126. India has ratified the Convention on the Elimination of AllForms of Discrimination against Women.[112] Article 12 of CEDAWrequires the State Parties to take appropriate measures to eliminatediscrimination against women in the field health care services inconnection with family planning, pregnancy, confinement, and post-natalperiod. Similarly, Article 16 urges State Parties to eliminate all forms ofdiscrimination against women and to ensure that they have the sameright to decide freely and responsibly on the number and spacing ofchildren and access the relevant information to effectively exercise theserights.

127. The UN Committee on the Elimination of DiscriminationAgainst Women emphasized that State Parties should undertakeappropriate measures to eliminate discrimination against women in theiraccess to health-care services, particularly in areas of family planning,pregnancy and confinement, and post-natal period.[113] It is also urgedthat State Parties should refrain from imposing barriers on women whoseek to pursue their right to access healthcare, including reproductivehealthcare.

128. India’s obligations under international law require the stateto bring the MTP Act in conformity with said obligations. The reproductiverights of women must be harmonised in light of the principles laid downunder the Constitution as well as the principles of international law codifiedin the various international conventions ratified by India. Our interpretationof the MTP Act and the MTP Rules furthers India’s obligations underinternational law. However, the state must act proactively in order toensure that women in India are able to actualize their right to reproductivehealth and healthcare, in line with the obligations assumed by the countryunder international law.

I. Reiterating the positive obligations of the state

129. True realization of reproductive autonomy is possible only byaddressing problems in the societal contexts within which individuals,particularly women, are situated. It is not only social stigma which preventswomen from realizing the right to health but also caste and economic

113 Committee on the Elimination of Discrimination Against Women, GeneralRecommendation No. 24: Article 12 of the Convention (Women and Health), A/54/38/Rev.1, chap. I (1999)

Alocation. The cost of an abortion at private hospital may be prohibitivefor those whose monthly salaries are fraction of that cost. Publichospitals in rural areas are often not equipped with the resources toprovide the kind and quality of healthcare that ought to be provided freeof cost or at highly subsidized rates. lack of awareness about theresources that public hospitals offer coupled with the discriminatoryBattitudes of many health providers only serve to exacerbate this problem.

130. The MTP Act recognises the reproductive autonomy of everypregnant woman to choose medical intervention to terminate herpregnancy. Implicitly, this right also extends to right of the pregnantCwoman to access healthcare facilities to attain the highest standard ofsexual and reproductive health. It is meaningless to speak of the latter inthe absence of the former. Reproductive health implies that women shouldhave access to safe, effective, and affordable methods of family planningand enabling them to undergo safe pregnancy, if they so choose.

D131. The Directive Principles of State Policy in Part IV of theConstitution lay down the fundamental principles in the governance ofthe country and press upon the state to apply them while making laws.Article 38(2) of the Constitution requires the state to promote the welfareof people and eliminate inequalities in opportunities:

E“Article 38. State to secure social order for the promotion ofwelfare of the people - ***

(2) The State shall, in particular, strive to minimize the inequalitiesin income, and endeavour to eliminate inequalities in status, facilitiesand opportunities, not only amongst individuals but also amongstFgroups of people residing in different areas or engaged in differentvocations.”

132. Article 47 of the Constitution contains call to the state toimprove public health:

“47. Duty of the State to raise the level of nutrition and the standardof living and to improve public health – The State shall regard theraising of the level of nutrition and the standard of living of itspeople and the improvement of public health as among its primaryduties and, in particular, the State shall endeavour to bring about

the prohibition of the consumption except for medicinal purposesof intoxicating drinks and of drugs which are injurious to health.”

133. In Devika Biswas v. Union of India,[114]the petitionerschallenged the mass sterilisation program that was implemented by thegovernment in highly unsanitary conditions. This Court recognized theneed to respect and protect different facets of reproductive health asdelineated in international human rights law. It noted that governmentpolicies affecting reproductive freedoms must be aimed at remedyingthe systemic discrimination prevailing in society and ensuring substantiveequality. In Paschim Banga Khet Mazdoor Samiti v. State of WestBengal,[115] this Court observed that Article 21 imposes an obligation onthe state to safeguard the right to health and the right to life of everyperson. It was held that this constitutional obligation exhorts the state toprovide adequate medical services to the people and to ensure timelymedical treatment to everyone. The above conspectus of cases revealsthat the state has positive obligation under Article 21 to protect theright to health, and particularly reproductive health of individuals. In termsof reproductive rights and autonomy, the state has to undertake activesteps to help increase access to healthcare (including reproductivehealthcare such as abortion).

134. The state must ensure that information regarding reproductionand 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 accesscontraceptives to avoid unintended pregnancies and plan their families.Medical facilities and RMPs must be present in each district and mustbe affordable to all. The government must ensure that RMPs treat allpatients equally and sensitively. Treatment must not be denied on thebasis of one’s caste or due to other social or economic factors. It is onlywhen these recommendations become reality that we can say that theright to bodily autonomy and the right to dignity are capable of beingrealized.

135. We clarify that nothing in this judgment must be construed asdiluting the provisions of the Pre-Conception and Pre-Natal DiagnosticTechniques (Prohibition of Sex Selection) Act 1994.

114 (2016) 10 SCC 726115 (1996) 4SCC 37

754SUPREME COURT REPORTS

[2022] 7 S.C.R.

A136. We dispose of the present appeal in terms of the reasonsstated above. The writ petition before the High Court shall accordinglystand disposed of.

137. Pending applications, if any, stand disposed of.

Ankit Gyan

(Assisted by : Aarsh Choudhary, LCRA)

Appeal disposed of.