REIMAGINING REPRODUCTIVE RIGHTS JURISPRUDENCE IN INDIA: REFLECTIONS ON THE RECENT DECISIONS ON PRIVACY AND GENDER EQUALITY FROM THE SUPREME COURT OF INDIA.

• Author: Jain, Dipika

INTRODUCTION

In July 2018, twenty-year-old Sarita approached the Supreme Court of India seeking permission to terminate her twenty-five-week pregnancy. (1) Sarita was a domestic violence survivor and suffered from other health complications due to epilepsy. She had learned of her pregnancy at seventeen weeks and her petition stated that she had become pregnant as a result of her husband's refusal to use contraceptives. At twenty-one weeks, when she first approached the Bombay High Court, Sarita was just one week over the legal limit specified in the 1971 Medical Termination of Pregnancy (MTP Act), which permits termination of pregnancies on certain grounds up to twenty weeks. (2) When the court refused permission, (3) Sarita appealed to the Supreme Court, citing a recent Supreme Court decision--Justice K.S. Puttaswamy (Retd.) v. Union of India--which recognized the right to privacy as a fundamental right in India. (4) However, she was devastated when, at twenty-five weeks pregnant, the court issued a one-line order simply denying her permission for an abortion. (5) Troublingly, the two-judge bench stated that her request amounted to murder and that the "unborn child" should have been represented in court instead of Sarita. (6) The bench also questioned Sarita's competency to make decisions, claiming that if she had listened to the foetal heartbeat, she would have changed her decision, further implying that Sarita would ultimately come to "regret" having an abortion if she chose to reconcile with her husband in the future. (7)

Sarita's case stands in contrast to other landmark decisions by Indian courts. In the past decade, several groundbreaking judgments have recognized women's rights as decision-makers regarding their own reproductive lives. In cases on maternal health, contraceptive information and services, and abortion, the judiciary has recognized constitutional protections for women's right to reproductive health and autonomy and has even emphasized that women's right to life must be paramount in reproductive decisionmaking. Nevertheless, courts continue to understand abortion as a conditional right and have yet to recognize abortion as an essential element of pregnant persons' equality. This understanding of abortion is reflected in the framework of the MTP Act, which articulates exceptions to the criminalization of abortion in the 1860 Indian Penal Code (IPC) only on certain grounds and requires the approval of one to two registered medical providers for a termination. (8) The IPC is a colonial legislation and the criminal provisions on abortion have their roots in the 1861 British Offences Against the Person Act as well as an earlier legislative prohibition on 'procurement of miscarriage.' (9) The judiciary has refrained from challenging the criminalization of abortion itself, creating serious barriers to access to safe abortion services for pregnant persons due to, inter alia, stigma and the chilling effect on providers' willingness to provide abortion care. However, the plurality opinion and several individual opinions in the Puttaswamy case recognized that reproductive rights fall within the ambit of the right to privacy, (10) building upon a 2009 decision on reproductive autonomy" as well as comparative law and international human rights law. In 2018, the Supreme Court of India followed this with two judgments on gender equality and autonomy: Navtej Johar v. Union of India (12) and Joseph Shine v. Union of India. (13) These judgments affirm the courts' constitutional obligation to strike down laws that reflect discriminatory stereotypes and infringe upon women's sexual autonomy, which encompasses the right to make reproductive choices. We argue that together these cases create a strong mandate to re-examine the gender stereotypes underlying the laws on abortion in India. On this basis, we call for a reevaluation of the "conditional right" approach to abortion under the MTP Act as well as the continued criminalization of abortion in India.

In the Puttaswamy decision, the Supreme Court, in a nine-judge bench decision, unequivocally recognized the right to privacy as a fundamental right, which emerges not only from the guarantee of life and personal liberty in Article 21 of the Constitution, (14) but also from varying contexts arising out of other facets of freedom and dignity. (15) Retired High Court judge K.S. Puttaswamy brought this case to the Supreme Court as a constitutional challenge to the 'Aadhaar' scheme, which mandated a biometrics identity-card for access to government services and benefits. (16) The judgment has since generated significant discussion amongst legal scholars and commentators in India about whether it might finally give rise to clear recognition by Indian courts of abortion as an absolute right for women and girls. (17)

Delving further into the concept of autonomy, the Supreme Court decisions in Navtej Johar and Joseph Shine unpack the notion of sexual autonomy and its link to reproductive autonomy. Notably, in Navtej Johar the Supreme Court of India struck down part of [section] 377 of the Indian Penal Code that criminalized same-sex relationships between consenting adults. (18) The court ruled that [section] 377 prevented LGBT (19) individuals from fully realizing their identity and violated their rights to life, health, liberty, dignity, and sexual autonomy. The decision recognized that any criminalization of a subgroup creates a chilling effect on access to healthcare services, emphasizing the inappropriateness of laws that "would have human beings accept a way of life in which sexual contact without procreation is an aberration and worse still, penal." (20) By recognizing that the Constitution protects human sexuality, which the state cannot legitimize only in the form of "rigid, marital procreational sex," (21) this decision raises important questions concerning the criminalization of abortion. We argue that such criminalization creates barriers to reproductive healthcare for persons who can become pregnant, (22) further restricting their ability to have non-procreative sex. In Joseph Shine, the court struck down [section] 497 of the IPC and decriminalized adultery. (23) Section 497 allowed husbands to prosecute men with whom their wives had sex, but did not allow wives to prosecute women with whom their husbands had sex. (24) The court held [section] 497 unconstitutional and violative of the fundamental right to sexual privacy and sexual autonomy. (25) The judgment specifically highlighted the archaic gender stereotypes concerning sexual autonomy that underlie this provision. (26)

In these decisions, the Supreme Court articulated how the right to privacy and the rights to equality and non-discrimination on the basis of sex and gender come together to create an obligation on states to eliminate laws that serve as barriers to healthcare and reflect discriminatory gender stereotypes. The significance of the Supreme Court's judgments in Navtej Johar and Joseph Shine for recognition of abortion as a woman's right in India should be understood to be on par with or even greater than that of Puttaswamy. We examine the importance of both of these cases, which affirm the courts' constitutional obligation to strike down laws that reflect discriminatory stereotypes and infringe upon sexual autonomy, in re-examining laws that restrict access to abortion in India. We also highlight the transformative potential of these decisions, especially for reproductive rights.

Drawing on the arguments made by human rights and reproductive justice advocates globally, we argue that it is critical for Indian courts to incorporate a comprehensive equality-based analysis into their reproductive rights jurisprudence. (27) This analysis must reflect on the impact of gender, with caste and indigeneity, age, and socioeconomic status, among other factors, to meaningfully ensure reproductive rights for all women and girls. As recognized under the reproductive justice framework, the ability to enjoy reproductive rights in practice is intrinsically linked to one's material condition and social and other determinants of health--that is, factors such as social, economic, and physical environments that combine to affect the health of individuals and communities beyond just access to and use of healthcare. (28) This includes structural patterns of discrimination based on gender, race, class, and disability that impact individuals' ability to access sexual and reproductive health information, education, and services. These structural barriers also prevent persons who can become pregnant from making autonomous, meaningful decisions regarding their pregnancies, bodies, and lives. An equality-based analysis is necessary, as it allows the court to consider the stereotypes and gender norms underlying reproductive health laws. It also accounts for the financial and opportunity cost to women--specifically, marginalized groups of women--of laws, policies, and practices restricting reproductive health care and decision making.

Reproductive rights are an essential component of pregnant persons' autonomy, bodily integrity, and dignity. Importantly, without reproductive autonomy and health, pregnant persons face discriminatory interference with a wide range of human rights, including life, liberty, security, health, and freedom from torture and ill-treatment. (29) Courts across India have already recognized the right to health--interpreted to include women's rights to survive pregnancy and childbirth and to access reproductive healthcare (30)--as part of the state's obligations under the Constitution and as protected within the right to life. Moreover, there has been considerable progress in recognizing the reproductive rights of women and girls in India by notable Supreme Court and High Court decisions issued prior to the groundbreaking case of Puttawsamy. These judgments have respected a woman's...