Full of Sound and Fury Signifying Nothing: A Critique of the Supreme Court's judgement on abortion law in India (X v NCT Delhi)

A few days ago, in response to the Supreme Court judgement in X v NCT Delhi on "abortion rights" I said:

While indulging in some very social media friendly virtue signalling, the Supreme Court's judgement in X v NCT of Delhi, has only re-affirmed the status quo about abortions. The court has asked itself the wrong questions, arrived at some confusing and contradictory answers and eventually, left single and married women high and dry in so far as their rights to an abortion are concerned. It is a sorry example of "judgement" that is a collection of homilies without serious analysis or interpretation of the law and will make no difference to the law and practice of abortion in India.

As I'd promised, here's the longer version of the critique. I am focusing my critique only on the somewhat false binary drawn by the court between the "rights" of single women as against married women to get an abortion in India. (I use "rights" in scare quotes here and elsewhere because much as the court wishes it to be, abortion is not yet a constitutional or legal right in India even with this judgement as I explain later).

The first thing to keep in mind when thinking of abortion in India is that it is still a criminal offence to commit an abortion that is not strictly in accordance with the Medical Termination of Pregnancy Act, 1971 and the Medical Termination of Pregnancy Rules, 2003. It is an offence punishable under Sections 312 to 316 of the Indian Penal Code, 1860 (depending on the circumstances of the abortion) and yes, even a woman who consents to an abortion can be made an accused as an abettor if she gave consent for the abortion. The only exception the law recognizes is when the pregnant woman's life is in danger. What the MTP Act offers therefore is a "safe harbour" - for both the abortion provider and the woman so long as an abortion is carried out in accordance with the MTP Act.

Who may get an abortion, when and how is prescribed under the MTP Act and the MTP Rules, and to simplify matters, I'm putting it down in the chart below. I'm breaking the laws up into when a woman can get an abortion (during a pregnancy), which categories of women, the procedure to be followed and why they may get an abortion:

The matter in X v NCT of Delhi related to an unmarried woman who was in the 22nd week of pregnancy and wished to abort the child since her partner had abandoned her. Her situation was particularly piquant: she didn't fall within any of the categories mentioned in the above table. She approached the Delhi High Court seeking permission to abort and the High Court refused on the ground that she didn't fall strictly in any one of the categories. She could, at best, have fallen in category 3 but since she wasn't married, the High Court declined her relief. Even though she challenged the constitutional validity of the provision in question (Section 3(2)(b) of the MTP Act read with Rule 3B of the MTP Rules), the court did not grant her interim relief while adjudicating the case.

The petitioner was not the first to have approached a High Court seeking permission to abort a pregnancy when the law was not absolutely clear if they could. The 2021 Amendment to the MTP Act was necessitated to prevent women having to go to court asking for permission to get an abortion. The idea was to provide greater clarity to RMPs as to when, how and why they may carry out an abortion. While definitely an improvement over the previous regime, the 2021 amendment did not really remedy the root cause of the problem and created a couple of new ones.

What is the root cause of the problem? The fact that an abortion has to be undertaken only when medical practitioners approve of the same in accordance with the MTP Act. Put yourself in the shoes of a doctor - you have a law which says abortions are a punishable crime unless done in accordance with the MTP Act. You are relying on the assessment of your fellow medical professionals to approve of the abortions and stay within the lines drawn by the MTP Act. If they are wrong in their assessment, or if you are wrong in reading their assessment, and carry out an abortion, you could face criminal proceedings. You may be acquitted eventually if the evidence shows you acted in good faith, but as a doctor you may not want to go through the process and refuse an abortion on the grounds of, what we call in Bengaluru, "simply why to take tension."

Now the 2021 Amendment did bring some certainty and clarity to the process but creates two new ambiguities which has brought us to this case. This is result of bad drafting and illustrates what happens when the best intentions don't translate properly into the law.

Go back to who can get an abortion between the 20th and 24th weeks of pregnancy. You'll see that of the seven categories, five relate to categories of women, one relates to the condition of the foetus and one to an external event happening to a woman. Straight away this is confusing - is this a list of women who can get an abortion between the 20th and 24th week or the reasons why they're getting an abortion? It's both and there in lies the confusion.

Take a look at the clause involved in this case: "change of marital status during the ongoing pregnancy (widowhood and divorce)". "Change of marital status" is not a clearly defined legal term either in the MTP Act or the MTP Rules. While it has been used in a couple of other rules (relating to pensions and citizenship), there is no clear definition of what this might mean in those rules either. One could take the two categories mentioned in the brackets "widowhood and divorce" as being the only things that mean "change in marital status" but it could equally just be illustrative since the term on its own include "separation", or "declaration of marriage to be void" which are also changes in the marital status known to law.

This ambiguity is a key problem and not just for lawyers to fight over. Keep in mind that what this term means is being determined by a doctor who is allowed to undertake abortions not a lawyer or a judge trained in legal interpretation. If the doctor interprets it too widely, they could face criminal charges. If they interpret it narrowly... well nothing happens.

In an earlier order in the same case X v NCT Delhi, the Supreme Court addressed this ambiguity holding that marital status includes any relationship. The wider interpretation allowed the petitioner "X" to get an abortion but only after a medical board certified her as being qualified for one. If the Supreme Court had closed the matter there, it would have provided much needed certainty to a limited extent but the court chose to go further and this is where I think it has muddied the matter further.

As we have seen above, there is no bar on single women getting abortions because they are single women (provided they fulfill the requirements of the MTP Act and Rules). Likewise, there's no blanket permission for married women to get abortions because they are married women, unless they meet the strict requirements of the MTP Act and Rules. Yet, the court in X v NCT of Delhi goes ahead and frames this baffling question:

"The question that arises is whether Rule 3B includes unmarried women, single women, or women without a partner under its ambit."

Rule 3B simply lists out the categories of women who can avail of an abortion under the MTP Act. It's only sub-rule (c) of Rule B which refers to marital status which might make a distinction between the two, that too in a limited context. All other categories of women mentioned in Rule 3B by default include both married and unmarried women. Taken literally, it would seem the court is restricting the right of unmarried women already provided for!

Let's assume however that this was merely a typo and the court meant to say "Rule 3B sub-rule (c)" in its question. Does it provide an answer which expands the rights married and unmarried women to avail of an abortion?

Unfortunately not.

For all its quoting of judgements, international and homilies to the plight of women, this is what the court concludes:

"... it is evident that it was not the intention of the legislature to restrict the benefit of Section 3(2)(b) and Rule 3B only to women who may be confronted with a material alteration in the circumstances of their lives in the limited situations enumerated in Rule 3B. Rather, the benefit granted by Rule 3B must be understood as extending to all women who undergo a change of material circumstances.

It is not possible for either the legislature or the courts to list each of the potential events which would qualify as a change of material circumstances. Suffice it to say that each case must be tested against this standard with due regard to the unique facts and circumstances that a pregnant woman finds herself in."

In effect, the court has expanded Rule 3B(c) to include both married and single women, but provided that they show a change in "material circumstances". The court ends by saying it's not possible to exhaustively clarify what "material circumstances" but will have to be decided on a case by case basis.

If you have been following the discussion so far, you'll know why this effectively affirms the status quo for both single and married women. To repeat, the call on what "material circumstance" is will have to be made by doctors, not lawyers. A broad call will make you liable for criminal prosecution. A narrow call, re-iterating the existing provisions of 3B (c) will have no consequences. This is a concern all the more because there might be a husband or a partner who did not want their wives or partners to abort and who may be aggrieved enough to file a criminal complaint against the wife and/or abortion provider.

What will therefore happen is that abortion providers are unlikely to take the risk of performing abortions in case of "change in material circumstances" prompting the women to once again knock on the doors of a High Court seeking clarity. Here again, the matter will be left to the total discretion of the bench of the High Court. All that the judgement in X v NCT Delhi has done is to keep the "right" of a woman to an abortion in the hands of the abortion provider, the registered medical practitioners, and the High Court judges.

Before I be misunderstood, let me clarify that this is an unsatisfactory state of affairs. Making an abortion a "right" for women would involve striking down parts of the IPC and parts of the MTP, or at least amending them from a rights based approach. In jurisprudential terms the law as it stands states that an abortion, carried out according to law, is a privilege for certain women in certain circumstances, and if you're not one of those women in those circumstances, you're liable for criminal prosecution if you abort the child. If this were to be a right, as understood under law, there would be consequences on the abortion provider or doctor for failing to provide an abortion in accordance with the law as required by the woman. Choice would be the central feature of such a law and medical grounds coming into the picture only when the woman is not in a position to give consent.

But choice is not the only contentious issue on which the abortion debate in India takes place. Sex selective abortions are rampant in India and it is a reasonable goal of public policy to prevent such widespread female foeticide. There is no law at the moment which punishes sex specific abortions because the law punishes abortions in general and gives limited exceptions. If the law were to take a rights based approach, it will still have to grapple with how to address female foeticide within whatever framework it chooses. This may require a rethinking of the entire framework of the Preconception Pre-Natal Diagnostic Techniques Act, 1994 as well.

For all it verbosity, the judgement of the Supreme Court in X v NCT Delhi does not engage with the topic of abortion in India with the seriousness the topic deserves. It engages in simplification and sloganeering, and ultimately slinks away from the hard task of actually trying to push forward reform of the law relating to abortions in India. Read in total, it only affirms the status quo but in slightly different words, leaving women who seek abortions, little better off than what they were.