X v. THE PRINCIPAL SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVT. OF NCT OF DELHI & ANR
Citation: [2022] 7 S.C.R. 686; 2022 INSC 740
Court: Supreme Court of India
Bench: D.Y. CHANDRACHUD , A.S. BOPANNA, J.B. PARDIWALA
Judgment date:
Case summary
2022 INSC 740. Supreme Court of India judgment dated 2022-09-29. X v. THE PRINCIPAL SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVT. OF NCT OF DELHI &...
Judgment text
686 SUPREME COURT REPORTS[2022] 7 S. C. R. 686 [2022] 7 S. C. R. A X v. THE PRINCIPAL SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVT. OF NCT OF DELHI & ANR. (Civil Appeal No. 5802 of 2022) B SEPTEMBER 29, 2022 [DR. DHANANJAYA Y. CHANDRACHUD, A. S. BOPANNA AND J. B. PARDIWALA, JJ. ] Medical Termination of Pregnancy Act 1971(Amended by the C Medical Termination of Pregnancy (Amendment) Act,2021) – s.
3(2)(b) – Medical Termination of Pregnancy Rules,2003 (Amended by Medical Termination of Pregnancy (Amendment) Rules, 2021) – Rule 3B – Constitution of India – Article 14, 21 – The Interpretation of Rule 3B of the MTP Rules – Unmarried or single women fall D within the ambit of Rule 3B – Purpose and object – Right to reproductive autonomy – Right to dignity – Appellant instituted a writ petition before the High Court and submitted that appellant was in a consensual relationship and had become pregnant – As her partner had refused to marry her and in absence of source of livelihood, she would be unable to nurture a child as an unmarried E mother – Appellant also instituted a Criminal Miscellaneous Application for grant of interim relief to terminate her pregnancy during the pendency of the Writ Petition – High Court declined to grant relief sought and observed that Section 3(2)(b) of the MTP Act was inapplicable and since the appellant, being an unmarried F woman, was not covered by any of the sub-clauses of Rule 3B of the MTP Rules – Appeal was filed before the Supreme Court against the order of High Court and Supreme Court by ad interim order modified the order of the High court and permitted the appellant to terminate her pregnancy – As the case involved substantial question of law the writ petition before the High Court was transferred to G Supreme Court – The issue involved is the interpretation of Rule 3B of the MTP Rules – Held: In s.
3 of the MTP Amendment Act the words used are “Any women or her partner”, by eliminating the words (which existed before the amendment) “married women or her husband” the legislature intended to clarify the scope of s. 3 – H Further held, the meaning of the words “sexual assault” or “rape” 686 X v. PR. SECY. , HEALTH & FAMILY WELFARE DEPTT.
, GNCT 687 DELHI in Rule 3B(a) includes a husband’s act of sexual assault or rape A (Marital rape) committed on his wife but solely for the purposes of the MTP Act – Unmarried women have right to access safe and legal abortions between twenty and twenty-four weeks, if they face a change in their material circumstances, similar to married women – Distinction between married and unmarried women does not bear B nexus to the basic purpose and object which is sought to be achieved by parliament – In view of the object, there is no rationale for excluding unmarried or single women (who face a change in their material circumstances) from the ambit of Rule 3B. Medical Termination of Pregnancy Act 1971(Amended by the C Medical Termination of Pregnancy (Amendment) Act,2021 ) – Object and purpose – Discussed. Medical Termination of Pregnancy Rules,2003 (Amended by Medical Termination of Pregnancy (Amendment) Rules, 2021) – Rule 3B – Purposive Interpretation of.
D Disposing of the appeal, the Court HELD:1. Despite the enactment of the MTP Act, a number of hurdles continue to prevent full access to safe and legal abortions, pushing women to avail of clandestine, unsafe abortions. These barriers include insufficient infrastructural facilities, a lack E of awareness, social stigma, and failure to ensure confidential care. In some situations, unmarried women face particular barriers due to gender stereotypes about women’s sexual autonomy outside marriage. These barriers are a serious impediment and deter single women from seeking safe and legal abortions. Such barriers may contribute to a delay in accessing abortion services F or a complete denial of such services, consequently negating women’s right to reproductive autonomy. [Para 18][709-B-C] 2. Although the actions of RMPs done in good faith under the MTP Act are protected under Section 8, the spectre of criminalization casts a chilling effect on them.
The fear faced by G RMPs of prosecution under the penal provisions often leads to unnecessary delays. It is a common yet lamentable practice for RMPs to insist on compliance with extra-legal conditions such as consent from the woman’s family, documentary proofs, or H 688 SUPREME COURT REPORTS [2022] 7 S. C. R. A judicial authorisation. If the woman fails to comply with these additional requirements, RMPs frequently decline to provide their services in conducting legal abortions. These extra-legal requirements have no basis in law. As noted above, it is only the woman’s consent (or her guardian’s consent if she is a minor or mentally ill) which is material. RMPs must refrain from imposing B extra-legal conditions on women seeking to terminate their pregnancy in accordance with the law. They need only ensure that the provisions of the MTP Act (along with the accompanying rules and regulations) are complied with. [Paras 22, 23][710-G; 711-A-C] C 3.
An RMP’s decision to provide medical termination of a pregnancy is also influenced by social stigma surrounding unmarried women and pre-marital sex, gender stereotypes about women taking on the mantle of motherhood, and the role of women in society. The social stigma that women face for engaging D in pre-marital sexual relations prevents them from realizing their right to reproductive health in a variety of ways. They have insufficient or no access to knowledge about their own bodies due to a lack of sexual health education, their access to contraceptives is limited, and they are frequently unable to approach healthcare providers and consult them with respect to E their reproductive health. Consequently, unmarried and single women face additional obstacles. [Paras 26, 28][712-C-D; 713- A-B] 4. The question that arises is whether Rule 3B includes unmarried women, single women, or women without a partner F under its ambit.
The answer may be discerned by imparting a purposive interpretation to Rule 3B. The cardinal principle of the construction of statutes is to identify the intention of the legislature and the true legal meaning of the enactment. The intention of the legislature is derived by considering the meaning of the words used in the statute, with a view to understanding the G purpose or object of the enactment, the mischief, and its corresponding 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) rooted in the institution of marriage, the law in modern times is shedding H X v. PR. SECY. , HEALTH & FAMILY WELFARE DEPTT. , GNCT 689 DELHI the notion that marriage is a precondition to the rights of A individuals (alone or in relation to one another). Changing social mores must be borne in mind when interpreting the provisions of an enactment to further its object and purpose.
In Navtej Singh Johar, this Court emphasized the transformative nature of our Constitution. Transformative constitutionalism promotes and B engenders societal change by ensuring that every individual is capable of enjoying the life and liberties guaranteed under the Constitution. This Court observed that transformative constitutionalism places a duty on the judiciary to “ensure and uphold the supremacy of the Constitution, while at the same time ensuring that a sense of transformation is ushered constantly and C endlessly in the society by interpreting and enforcing the Constitution as well as other provisions of law in consonance with the avowed object. [Paras 38, 40][718-D-E; 719-C-D] 6. The MTP Amendment Act 2021 also extended the benefit of the legal presumption of a grave injury to the mental health of D a woman on account of the failure of contraception, to all women and not just married women.
In the unamended MTP Act, Explanation II provided that the anguish caused by a pregnancy resulting from a failure of any device or method used by any “married woman or her husband” for the purpose of limiting the E number of children may be presumed to constitute a grave injury to the mental health of the woman. After the MTP Amendment Act 2021, Explanation I provides that the anguish caused by a pregnancy (up to twenty weeks) arising from a failure of a contraceptive device used by “any woman or her partner” either for limiting the number of children or for preventing pregnancy F can be presumed to constitute a grave injury to a woman’s mental health. By eliminating the word “married woman or her husband” from the scheme of the MTP Act, the legislature intended to clarify the scope of Section 3 and bring pregnancies which occur outside the institution of marriage within the protective umbrella G of the law. [Para 53][724-C-E] 7.
The unamended MTP Act of 1971 was largely concerned with “married women”, as evident from paragraph 1 of its Statement of Objects and Reasons, which stated that most of the H 690 SUPREME COURT REPORTS [2022] 7 S. C. R. A women seeking abortions were married, and thus “under no particular necessity to conceal their pregnancy. ” Significantly, the 2021 Statement of Objects and Reasons does not make a distinction between married and unmarried women. Rather, all women are entitled to the benefit of safe and legal abortions. [Para 56][725-D] B 8 . The expression “mental health” has a wide connotation and means much more than the absence of a mental impairment or a mental illness. The World Health Organization defines mental health as a state of “mental well-being that enables people to cope with the stresses of life, realize their abilities, learn well C and work well, and contribute to their community.
” The determination of the status of one’s mental health is located in one’s self and experiences within one’s environment and social context. Our understanding of the term mental health cannot be confined to medical terms or medical language, but should be D understood in common parlance. The MTP Act itself recognizes the need to look at the surrounding environment of the woman when interpreting injury to her health. Section 3(3) states that while interpreting “grave injury to her physical or mental health”, account may be taken of the pregnant woman’s actual or reasonably 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 Rule 3B(a) includes a husband’s act of sexual assault or rape committed on his wife. The meaning of rape must therefore be understood as including marital rape, solely for the purposes of the MTP Act F and any rules and regulations framed thereunder.
Any other interpretation would have the effect of compelling a woman to give birth to and raise a child with a partner who inflicts mental and physical harm upon her. [Para 75][733-A-B] 10. In order to avail the benefit of Rule 3B(a), the woman G need not necessarily seek recourse to formal legal proceedings to prove the factum of sexual assault, rape or incest. Neither Explanation 2 to Section 3(2) nor Rule 3B(a) require that the offender be convicted under the IPC or any other criminal law H X v. PR. SECY. , HEALTH & FAMILY WELFARE DEPTT. , GNCT 691 DELHI for the time being in force before the pregnant woman can access A an abortion. Further, there is no requirement that an FIR must be registered or the allegation of rape must be proved in a court of law or some other forum before it can be considered true for the purposes of the MTP Act. Such a requirement would be contrary to the object and purpose of the MTP Act.
In fact, B Explanation 2 triggers the legal presumption as to mental trauma “where any pregnancy is alleged by the pregnant woman to have been caused by rape. ” [Para 76][733-C-D] 11. If Rule 3B(c) was to be interpreted such that its benefits extended only to married women, it would perpetuate the C stereotype and socially held notion that only married women indulge in sexual intercourse, and that consequently, the benefits in law ought to extend only to them. This artificial distinction between married and single women is not constitutionally sustainable. The benefits in law extend equally to both single and married women. A recognition of the fact that there may be a D change in a woman’s material circumstance animates Rule 3B(c), Rule 3B(g) and Rule 3B(f). However, Rule 3B does not enumerate all the potential changes that a woman’s material circumstances may undergo.
It merely specifies some of the potential changes to a woman’s material circumstances, in sub-rules (c), (f) and (g). E From the object and purpose of the MTP Act, its overall scheme, and the categories of women specified in Rule 3B, 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, F the benefit granted by Rule 3B must be understood as extending to all women who undergo a change of material circumstances. [Paras 92, 93][738-C-F] 12. The ambit of reproductive rights is not restricted to the right of women to have or not have children. It also includes G the constellation of freedoms and entitlements that enable a woman to decide freely on all matters relating to her sexual and reproductive health.
Reproductive rights include the right to access education and information about contraception and sexual H 692 SUPREME COURT REPORTS [2022] 7 S. C. R. A health, the right to decide whether and what type of contraceptives to use, the right to choose whether and when to have children, the right to choose the number of children, the right to access safe and legal abortions, and the right to reproductive healthcare. Women must also have the autonomy to make decisions concerning these rights, free from coercion B or violence. [Para 96][739-B-D] 13. If women with unwanted pregnancies are forced to carry their pregnancies to term, the state would be stripping them of the right to determine the immediate and long-term path their lives would take. Depriving women of autonomy not only over C their bodies but also over their lives would be an affront to their dignity.
The right to choose for oneself – be it as significant as choosing the course of one’s life or as mundane as one’s day-today activities – forms a part of the right to dignity. It is this right which would be under attack if women were forced to continue D with unwanted pregnancies. [Para 110][744-G-H; 745-A] 14. The object of Section 3(2)(b) of the MTP Act read with Rule 3B is to provide for abortions between twenty and twenty-four weeks, rendered unwanted due to a change in the material circumstances of women. In view of the object, there is no rationale for excluding unmarried or single women (who face a change in E their material circumstances) from the ambit of Rule 3B. A narrow interpretation of Rule 3B, limited only to married women, would render the provision discriminatory towards unmarried women and violative of Article 14 of the Constitution. Article 14 requires the state to refrain from denying to any person equality before F the law or equal protection of laws.
Prohibiting unmarried or single pregnant women (whose pregnancies are between twenty and twenty-four weeks) from accessing abortion while allowing married women to access them during the same period would fall foul of the spirit guiding Article 14. The law should not decide the beneficiaries of a statute based on narrow patriarchal principles G about what constitutes “permissible sex”, which create invidious classifications and excludes groups based on their personal circumstances. The rights of reproductive autonomy, dignity, and privacy under Article 21 give an unmarried woman the right of H X v. PR. SECY. , HEALTH & FAMILY WELFARE DEPTT. , GNCT 693 DELHI choice on whether or not to bear a child, on a similar footing of a A married woman. [Para 121][749-E-G; 750-A] 15. The state must ensure that information regarding reproduction and safe sexual practices is disseminated to all parts of the population.
Further, it must see to it that all segments of society are able to access contraceptives to avoid unintended B pregnancies and plan their families. Medical facilities and RMPs must be present in each district and must be affordable to all. The government must ensure that RMPs treat all patients equally and sensitively. Treatment must not be denied on the basis of one’s caste or due to other social or economic factors. It is only C when these recommendations become a reality that we can say that the right to bodily autonomy and the right to dignity are capable of being realized. [Para 134][753-E-F] S. Khushboo v. Kanniammal, (2010) 5 SCC 600 : [2010] 5 SCR 322; Shreya Singhal v. Union of India, (2015) 5 D SCC 1; Navtej Singh Johar v. Union of India (2018) 10 SCC 1 : [2018] 7 SCR 379; XYZ v. State of Maharashtra, 2018 SCC OnLine Bom 13751; Prabhavati Dattatray Jadhav v. State of Maharashtra, 2021 SCC Online Bom 9339; ABC v.
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State of Maharashtra, 2021 SCC Online Bom 1839; K S Puttaswamy v. Union of India, (2017) 10 SCC 1 : [2017] 10 SCR 569; Suchita Srivastava v. Chandigarh Administration (2009) 9 SCC 1 : [2009] 13 SCR 989; Common Cause v. Union of E India, (2018) 5 SCC 1 : [2018] 6 SCR 1; Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225 : [1973] Suppl. SCR 1; Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 1 SCC 608 : [1981] 2 SCR 516; Independent Thought v. Union of India, F (2017) 10 SCC 800 : [2017] 13 SCR 821; CIT v. S. Teja Singh, AIR 1959 SC 352 : [1959] Suppl. SCR 394; M. Pentiah v. Veeramallappa Muddal, [1961] 2 SCR 295; Tinsukhia Electric Supply Co. Ltd. v. State of Assam, (1989) 3 SCC 709 : [1989] 2 SCR 544; K. P. Varghese v. ITO, (1981) 4 SCC 173 : [1982] 1 SCR G 629; M. L. Kamra v. Chairman-cum-Managing Director, New India Assurance Co. Ltd. , [1992] 1 SCR 220; Express Newspapers Ltd v. Union of India [1959] SCR 12 : AIR 1958 SC 578; Githa Hariharan v.
Reserve Bank of India, (1999) 2 SCC 228 : [1999] 1 SCR 669; H 696 SUPREME COURT REPORTS [2022] 7 S. C. R. A People’s Union of Civil Liberties v. Union of India, (1997) 3 SCC 433 : [1997] 1 SCR 923; Devika Biswas v. Union of India, (2016) 10 SCC 726; Paschim Banga Khet Mazdoor Samiti v. State of West Bengal (1996) 4 SCC 37 : [1996] 2 Suppl. SCR 331 – Referred to. B Case Law Reference [2010] 5 SCR 322 referred to Para 20 [2018] 7 SCR 379 referred to Para 21 [2017] 8 SCR 212 referred to Para 25 C [2000] 2 SCR 515 referred to Para 27 [1992] 1 SCR 917 referred to Para 31 [2001] 1 SCR 221 referred to Para 31 [1958] SCR 360 referred to Para 31 D [1977] 3 SCR 412 referred to Para 31 [1965] SCR 626 referred to Para 32 [1992] 1 SCR 220 referred to Para 32 [2003] 1 SCR 975 referred to Para 32 E [1978] 1 SCR 423 referred to Para 33 [1987] 2 SCR 1 referred to Para 33 [1955] 2 SCR 603 referred to Para 35 [1988] 2 Suppl.
SCR 24 referred to Para 35 F [1995] 3 SCR 785 referred to Para 36 [1986] 2 SCR 169 referred to Para 36 [2009] 13 SCR 1139 referred to Para 36 [2008] 7 SCR 673 referred to Para 36 G [1996] 3 Suppl. SCR 439 referred to Para 37 [2019] 14 SCR 928 referred to Para 37 [2019] 6 SCR 307 referred to Para 38 [2013] 10 SCR 259 referred to Para 39 H X v. PR. SECY. , HEALTH & FAMILY WELFARE DEPTT. , GNCT 697 DELHI [2018] 7 SCR 379 referred to Para 40 A [2010] 5 SCR 322 referred to Para 41 [1950] SCR 869 referred to Para 49 [1992] 1 SCR 917 referred to Para 49 B [2004] 1 SCR 180 referred to Para 49 [1962] 3 Suppl. SCR 973 referred to Para 60 [2017] 1 SCR 687 referred to Para 62 [2017] 1 SCR 261 referred to Para 62 C 2017] 8 SCR 212 referred to Para 63 [2017] 10 SCR 569 referred to Para 100 [2009] 13 SCR 989 referred to Para 101 [2018] 6 SCR 1 referred to Para 104 D [1973] Suppl. SCR 1 referred to Para 111 [1981] 2 SCR 516 referred to Para 112 [2017] 13 SCR 821 referred to Para 115 [1959] Suppl.
SCR 394 referred to Para 117 E [1961] 2 SCR 295 referred to Para 117 [1989] 2 SCR 544 referred to Para 117 [1982] 1 SCR 629 referred to Para 117 [1992] 1 SCR 220 referred to Para 117 F [1959] SCR 12 referred to Para 119 [1999] 1 SCR 669 referred to Para 120 [1997] 1 SCR 923 referred to Para 123 [1996] 2 Suppl. SCR 331 referred to Para 133 G CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5802 of 2022. From the Judgment and Order dated 15. 07. 2022 of the High Court of Delhi at New Delhi in C. M. Application No. 30708 of 2022 in W. P. (C) No. 10602 of 2022. H 698 SUPREME COURT REPORTS [2022] 7 S. C. R. A Dr. 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, Abhijeet Singh, Ms. Shagun Thakur, Ms. Poornima Singh, Gurmeet Singh Makker, B 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 C A. Background ...................................................................... 4 B. Submissions ....................................................................... 7 C. The Medical Termination of Pregnancy Act 1971 and the rules framed thereunder ........................................................ 9 D D. Barriers to accessing safe and legal abortions ........... 16 i. RMPs’ fear of prosecution ....................................... 16 ii. Social stigma surrounding unmarried women....... 20 E. Analysis ........................................................................... 22 E i. The rule of purposive interpretation ..................... 22 ii. Transcending the institution of marriage as a source of rights .......................................................... 27 F a.
Modern or atypical forms of familial relationships ... 29 b. The equal status of married and unmarried or single women ................................................................ 30 iii. The object and purpose of the MTP Act .............. 32 G iv. The MTP Act as an aid of interpretation: Understanding “injury to mental health” .................. 39 v. Construing Rule 3B .................................................. 43 F. Constitutional values animating the interpretation H X v. PR. SECY. , HEALTH & FAMILY WELFARE DEPTT. , GNCT 699 DELHI [DR DHANANJAYA Y CHANDRACHUD, J. ] of the MTP Act and MTP Rules ........................................... 55 A i. The right to reproductive autonomy ...................... 55 ii. The right to dignity ................................................... 62 G. Purposive interpretation of Rule 3B furthers the B constitutional mandate ................................................... 66 H.
India’s obligations under international law ................. 69 I. Reiterating the positive obligations of the state ........... 72 C A. Background 1. Leave granted. 2. This appeal arises out of the judgment of a Division Bench of the High Court of Delhi dated 15 July 2022. The appellant invoked the writ jurisdiction of the High Court seeking its permission to terminate D her pregnancy before the completion of twenty-four weeks on 15 July 2022. 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 pregnancy through registered medical practitioners at any approved private E or government center or Hospital before 15. 07. 2022 as her relief will be infructuous after that as the pregnancy will be of around 24 Weeks by that time; B.
Restrain the Respondent from taking any coercive action or criminal proceedings against the Petitioner or any Registered F Medical Practitioner terminating the pregnancy of the petitioner at any approved private center or hospital registered by Govt NCT of Delhi; C. Direct the Respondent to include unmarried woman also within the ambit of the Rule 3B of the Medical Termination of Pregnancy G Rules 2003 (as amended on 21. 10. 2021) for termination of pregnancy under clause (b) of sub-section (2) Section 3 of the MTP Act, for a period of up to twenty-four weeks; D. Order an immediate Interim Relief of Stay during the course of proceedings” H 700 SUPREME COURT REPORTS [2022] 7 S. C. R. A 3. The appellant is an Indian citizen and a permanent resident of Manipur. She is currently residing in New Delhi. The appellant averred that she is the eldest amongst five siblings and that her parents are agriculturists.
At the time of the institution of the Writ Petition before the 1 High Court of Delhi, the appellant was carrying a single intrauterine pregnancy corresponding to a gestational age of twenty-two weeks. B The appellant is an unmarried woman aged about twenty-five years, and had become pregnant as a result of a consensual relationship. The appellant wished to terminate her pregnancy as “her partner had refused to marry her at the last stage. ” She stated that she did not want to carry the pregnancy to term since she was wary of the “social stigma and C harassment” pertaining to unmarried single parents, especially women. Moreover, the appellant submitted that in the absence of a source of livelihood, she was not mentally prepared to “raise and nurture the child as an unmarried mother. ” The appellant stated that the continuation of the unwanted pregnancy would involve a risk of grave and immense injury to her mental health. D 4.
The appellant sought permission to terminate her pregnancy in terms of Section 3(2)(b) of the Medical Termination of Pregnancy Act 2 1971 and Rule 3B(c) of the Medical Termination of Pregnancy Rules 3 2003 (as amended on 12 October 2021). The appellant instituted a 4 Criminal Miscellaneous Application for grant of interim relief to terminate E her pregnancy during the pendency of the Writ Petition. 5. By its order dated 15 July 2022, the High Court issued notice restricted only to prayer C of the Writ Petition, and rejected the Criminal Miscellaneous Application, effectively rejecting prayers A and B. The High Court observed that Section 3(2)(b) of the MTP Act was F inapplicable to the facts of the present case since the appellant, being an unmarried woman, whose pregnancy arose out of a consensual relationship, was not covered by any of the sub-clauses of Rule 3B of the MTP Rules. The High Court held that: “8.
The Petitioner, who is an unmarried woman and whose G pregnancy arises out of a consensual relationship, is clearly not covered by any of the Clauses under the Medical Termination of 1 WP(C) 10602/2022 2 “MTP Act” 3 “MTP Rules” 4 CM Application 30708/2022 H X v. PR. SECY. , HEALTH & FAMILY WELFARE DEPTT. , GNCT 701 DELHI [DR DHANANJAYA Y CHANDRACHUD, J. ] Pregnancy Rules, 2003. Therefore, Section 3(2)(b) of the Act is A not applicable to the facts of this case. 9. Learned counsel for the Petitioner states that Rule 3B of the Medical Termination of Pregnancy Rules, 2003 is violative of Article 14 of the Constitution of India, 1950, inasmuch as it excludes an unmarried woman. Whether such rule is valid or not can be B decided only after the said rule is held ultra vires, for which purpose, notice has to be issued in the writ petition and has been done so by this Court. 10.
As of today, Rule 3B of the Medical Termination of Pregnancy Rules, 2003, stands, and this Court, while exercising its power C under Article 226 of the Constitution of India, 1950, cannot go beyond the Statute. Granting interim relief now would amount to allowing 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 21 D July 2022. This Court, by its order dated 21 July 2022 modified the order of 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 interim order: E (i) We request the Director of the All India Institute of Medical Sciences, Delhi to constitute a Medical Board in terms of the provisions of Section 3(2D) of the Act, extracted in the earlier part of this order, during the course of 22 July 2022; and(ii) In the event that the Medical Board concludes that the fetus can be F aborted without danger to the life of the petitioner, a team of doctors at the All India Institute of Medical Sciences shall carry out the abortion in terms of the request which has been made before the High Court and which has been reiterated both in the Special Leave Petition and in the course of the submissions before this Court by counsel appearing on behalf of the petitioner. Before G doing so the wishes of the petitioner shall be ascertained again and her written consent obtained after due verification of identity. ” 7.
Counsel for the petitioner and the respondent stated that a Medical Board was constituted at the All India Institute of Medical H 702 SUPREME COURT REPORTS [2022] 7 S. C. R. 5 A Sciences. The Board noted that the petitioner had consented to the termination of her pregnancy and the procedure could be undertaken without danger to her life. The report submitted by AIIMS indicates that the termination of the pregnancy was safely carried out. 8. As the case involves a substantial question of law, this Court B has taken it up for further consideration. The Writ Petition before the Delhi High Court shall stand transferred to this Court. The significant issue which comes up for determination in this appeal turns on the interpretation of Rule 3B of the MTP Rules. B. Submissions C 9. Dr. Amit Mishra, learned counsel appearing on behalf of the appellant made the following submissions: a. The appellant was an unmarried woman whose partner had refused to marry her.
She did not wish to continue the pregnancy and have the child out of wedlock as she lacked D the financial resources to do so. She was not employed and her parents were farmers; b. She was also not mentally prepared to raise a child by herself. If she was compelled to do so, it would cause grave injury to her physical and mental health. The appellant was not prepared E to face the social stigma surrounding unwed mothers; and c. Section 3(2)(b) of the MTP Act and Rule 3B of the MTP Rules are arbitrary and discriminatory because they exclude unmarried women from their ambit. They discriminate against women on the ground of marital status, in violation of Article F 14 of the Constitution. 10. Ms. Aishwarya Bhati, learned senior counsel and Additional Solicitor General has ably assisted this Court in the interpretation of Section 3(2) of the MTP Act and Rule 3B(c) of the MTP Rules.
She made the following submissions in support of the argument that Rule G 3B(c) extends to unmarried or single women who are in long-term relationships: a. The interpretation of legislation must be guided by the text and context of a statute as well as the object it seeks to achieve. 5 “AIIMS” H X v. PR. SECY. , HEALTH & FAMILY WELFARE DEPTT. , GNCT 703 DELHI [DR DHANANJAYA Y CHANDRACHUD, J. ] The Statement of Objects and Reasons of a statute must also A guide its interpretation; b. Modern legislations ought to be read in view of the evolution of society from the time of enactment. The literal construction of beneficial legislations must be avoided, and they ought to be given a purposive interpretation; B c. A subordinate legislation should give effect to the statute it is enacted under. If two constructions are possible, the interpretation in consonance with the statutory scheme ought to be adopted; C d.
The term “change of marital status” in Rule 3B(c) ought to be interpreted as “change in the status of a relationship” to include unmarried or single women as well as women who are not divorced but are separated or have been deserted; e. “Live-in relationships” are equivalent to marital relationships D because in both types of relationships, the woman is entitled to maintenance. Further, the children born out of such a relationship are vested with the right of succession. Various national legislations, including the MTP Act, do not make a distinction between married women and unmarried or single women; and E f. Women enjoy the right to bodily integrity and autonomy, as well as reproductive rights. They are entitled to exercise decisional autonomy. C. The Medical Termination of Pregnancy Act 1971 and F the rules framed thereunder 11.
Before we embark upon a discussion on the law and its application, it must be mentioned that we use the term “woman” in this judgment as including persons other than cis-gender women who may require access to safe medical termination of their pregnancies. G 12. In India, termination of pregnancies is to be done strictly in terms 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 registered medical practitioners and for matters connected therewith or incidental thereto. ” The MTP Act specifies the requirements to be fulfilled for H 704 SUPREME COURT REPORTS [2022] 7 S. C. R. A terminating a pregnancy, including the persons who are competent to perform the termination procedure, circumstances when abortion is permissible, and places where the procedure may be performed. 13.
Section 3 of the MTP Act, as amended by the Medical 6 Termination of Pregnancy (Amendment) Act 2021 (8 of 2021), provides B for when pregnancies may be terminated: “Section 3 - When pregnancies may be terminated by registered medical practitioners (1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty C of any offence under that code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act.
2[(2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner,— D (a) where the length of the pregnancy does not exceed twenty weeks, if such medical practitioner is, or (b) where the length of the pregnancy exceeds twenty weeks but does not exceed twenty-four weeks in case of such category of woman as may be prescribed by rules made under this Act, if not E less than two registered medical practitioners are, of the opinion, formed in good faith, that— (i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or F (ii) there is a substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality. Explanation 1.
—For the purposes of clause (a), where any pregnancy occurs as a result of failure of any device or method G used by any woman or her partner for the purpose of limiting the number of children or preventing pregnancy, the anguish caused by such pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman. 6 “MTP Amendment Act 2021’’ H X v. PR. SECY. , HEALTH & FAMILY WELFARE DEPTT. , GNCT 705 DELHI [DR DHANANJAYA Y CHANDRACHUD, J. ] Explanation 2. —For the purposes of clauses (a) and (b), where A any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by the pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman. (2A) The norms for the registered medical practitioner whose B opinion is required for termination of pregnancy at different gestational age shall be such as may be prescribed by rules made under this Act.
(2B) The provisions of sub-section (2) relating to the length of the pregnancy shall not apply to the termination of pregnancy by the C medical practitioner where such termination is necessitated by the diagnosis of any of the substantial foetal abnormalities diagnosed by a Medical Board. (2C) Every State Government or Union territory, as the case may be, shall, by notification in the Official Gazette, constitute a Board D to be called a Medical Board for the purposes of this Act to exercise such powers and functions as may be prescribed by rules made under this Act. (2D) The Medical Board shall consist of the following, namely:— (a) a Gynaecologist; E (b) a Paediatrician; (c) a Radiologist or Sonologist; and (d) such other number of members as may be notified in the Official Gazette by the State Government or Union territory, as the case F may be.
(3) In determining whether the continuance of a pregnancy would involve such risk of injury to the health as is mentioned in sub-section (2), account may be taken of the pregnant woman’s actual or reasonably foreseeable environment. G (4) (a) No pregnancy of a woman, who has not attained the age of eighteen years, or, who having attained the age of eighteen years, is a mentally ill person, shall be terminated except with the consent in writing of her guardian. H 706 SUPREME COURT REPORTS [2022] 7 S. C. R. A (b) Save as otherwise provided in clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman. ” 7 14. Section 3 provides that registered medical practitioners shall not be guilty of committing any offence under the Indian Penal Code 8 1860 or under any other law for the time being in force if they terminate B pregnancies in accordance with the MTP Act.
Sub-section (4) of Section 3 stipulates that a pregnancy shall not be terminated except with the 9 consent of the pregnant woman, and if the woman is below 18 years of 10 age or is mentally ill, with the consent of her guardian. Subject to the requirement contained in sub-section (4) of Section 3, sub-section (2) of Section 3 provides that a pregnancy may be terminated by a registered C medical practitioner subject to the conditions laid down therein. Pregnancies may be terminated where they do not exceed twenty 11 weeks and for certain categories of women where they do not exceed 12 twenty-four weeks. Section 3(2)(a) of the MTP Act permits the termination of a pregnancy where the length of the pregnancy does not D exceed twenty weeks. Section 3(2)(b) of MTP Act permits the termination of a pregnancy, where the length of the pregnancy is between twenty and twenty-four weeks, of such categories of women “as may be prescribed by Rules.
” These pregnancies under Section 3 may be terminated if the medical practitioner in question (or in the case of pregnancies between twenty and twenty-four weeks, not less than two E registered medical practitioners) is, in good faith, of the opinion that: a. The continuance of the pregnancy would put the pregnant woman’s life at risk (Section 3(2)(i)); b. The continuance of the pregnancy would involve grave danger to the pregnant woman’s physical health (Section 3(2)(i)); F c. The continuance of the pregnancy would involve grave danger to the pregnant woman’s mental health (Section 3(2)(i)); or d. There is a substantial risk that the child would suffer from a serious physical or mental abnormality, if it is born (Section G 3(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 Act 12 Section 3(3)(b), MTP Act H X v. PR. SECY. , HEALTH & FAMILY WELFARE DEPTT. , GNCT 707 DELHI [DR DHANANJAYA Y CHANDRACHUD, J.
] In determining whether the continuation of the pregnancy would A involve grave danger to the pregnant woman’s physical or mental health, her actual or reasonably foreseeable environment may be taken into 13 account. We are of the opinion that significant reliance ought to be placed on each woman’s own estimation of whether she is in a position to continue and carry to term her pregnancy. B 15. The explanations to Section 3(2) provide for two legal presumptions indicating what constitutes a grave injury to the pregnant woman’s mental health. Explanation 1 stipulates that pregnancies which occur due to the failure of a contraceptive device or method used by a woman or her partner for limiting the number of children or preventing C pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman, if the pregnancy has not exceeded twenty weeks.
A similar legal presumption is provided for in Explanation 2, which stipulates that where a woman alleges that a pregnancy was caused as a consequence of rape, the anguish caused by the pregnancy shall be presumed to constitute a grave injury to her mental health. The legal D presumption in Explanation 2 is applicable to all pregnancies which have not exceeded twenty-four weeks. 16. Pregnancies may be terminated only in a hospital established 14 or maintained by the government, or any place approved for the purposes of the MTP Act either by the government or by a District E Level Committee constituted in terms of Section 4(b).
Further, the provisions of Section 4 and the provisions in Section 3(2) (which relate to the length of the pregnancy and the requirement for the opinion of at least two RMPs) shall not apply to the termination of pregnancies by an RMP, where the RMP is, in good faith, of the opinion that the termination F of the pregnancy is immediately necessary to save the life of the pregnant 15 woman. The MTP Act also seeks to protect the privacy of a woman who has terminated a pregnancy – any RMP who reveals the name or other particulars of such a woman shall be liable to be sentenced to 16 imprisonment which may extend to one year, or with fine, or both. The MTP Act vests the Central Government with the power to enact rules to G 13 Section 3(3), MTP Act 14 Section 4(a), MTP Act 15 Section 5(1), MTP Act 16 Section 5A, MTP Act H 708 SUPREME COURT REPORTS [2022] 7 S. C. R. 17 A carry out its provisions and the State Governments with the power to 18 enact regulations in certain cases. 17.
In exercise of this power, the Central Government notified the MTP Rules. The MTP Rules govern various aspects of the medical termination of pregnancies: they include rules on the District Level 19 20 21 B Committee, the Medical Board, RMPs, and the place where a 22 pregnancy may be terminated. Rule 3B, recently amended by the 23 Medical Termination of Pregnancy (Amendment) Rules 2021, is relevant for the purposes of the present discussion. It governs the categories of women under clause (b) of sub-section 2 of Section 3 who may have their pregnancy terminated if the length of their pregnancy C exceeds 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 be considered eligible for termination of pregnancy under clause (b) of sub-section (2) Section 3 of the Act, for a period of up to twenty- D four weeks, namely— (a) survivors of sexual assault or rape or incest; (b) minors; (c) change of marital status during the ongoing pregnancy E (widowhood and divorce); (d) women with physical disabilities [major disability as per criteria laid 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 being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped; and G 17 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 23 “MTP Amendment Rules” H X v. PR. SECY. , HEALTH & FAMILY WELFARE DEPTT.
, GNCT 709 DELHI [DR DHANANJAYA Y CHANDRACHUD, J. ] (g) women with pregnancy in humanitarian settings or disaster or A emergency situations as may be declared by the Government. ” D. Barriers to accessing safe and legal abortions 18. Despite the enactment of the MTP Act, a number of hurdles continue to prevent full access to safe and legal abortions, pushing women B to avail of clandestine, unsafe abortions. These barriers include insufficient infrastructural facilities, a lack of awareness, social stigma, and failure to ensure confidential care. In some situations, unmarried women face particular barriers due to gender stereotypes about women’s sexual autonomy outside marriage. These barriers are a serious impediment and deter single women from seeking safe and legal abortions. Such C barriers may contribute to a delay in accessing abortion services or a complete denial of such services, consequently negating women’s right to reproductive autonomy. i. RMPs’ fear of prosecution D 19.
It is not only the factors mentioned above which hinder access to safe abortion but also a fear of prosecution under the country’s criminal laws. Under the current legal framework, the MTP Act merely lays out exceptions to the provisions criminalizing abortion in Sections 312 to 318 of the IPC. Section 3(1) of the MTP Act begins with a non-obstante clause and stipulates that “Notwithstanding anything contained in the E Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act.
” In terms of Section 3(1), the termination of a pregnancy is a criminal offence under the IPC, unless it fulfils the conditions laid down in the MTP Act, including who F can terminate a pregnancy, the place where termination can take place, and the specific conditions in accordance with which such termination is permissible. Section 5(2) provides penalties when termination of pregnancy is carried out by a person who is not an RMP. Section 5(3) provides penalties when termination of pregnancy is carried out in a G place other than that mentioned in Section 4. RMPs and women seeking termination of pregnancy are exempted from any legal action under the provisions of the IPC mentioned above only when these conditions are fulfilled. H 710 SUPREME COURT REPORTS [2022] 7 S. C. R. A 20. Presently, under the MTP Act, the opinion of an RMP (in accordance with the restrictions and grounds laid down in the Act) is decisive.
It is on the basis of the opinion formed by RMP(s), either under Section 3 or under Section 5, that a woman can terminate a pregnancy under the MTP Act. This makes the MTP Act a provider-centric law. Since women’s right to access abortion is conditional on the B approval by an RMP, the denial of services by an RMP compels women 24 to approach courts or seek abortions in unsafe conditions. A fear of prosecution under this complex labyrinth of laws, including linking of the MTP Act with the IPC, acts as a major barrier to safe abortion access, by having a chilling effect on the behaviour of RMPs. The chilling effect C — historically associated with protection of freedom of speech and 25 expression under Article 19 — has an impact on the decision-making of medical professionals acting under the MTP Act and consequently impedes access to safe and legal abortions and the actualization of women’s fundamental right to reproductive autonomy. 26 D 21. In Navtej Singh Johar v.
Union of India a Constitution Bench of this Court held that Section 377 had a chilling effect on the exercise of freedom of individuals, which posed a grave danger to the unhindered fulfilment of one’s sexual orientation, as an element of dignity and privacy. One of us, Dr. DY Chandrachud, J. , recognized the impact of the criminalization of homosexuality on the spread of HIV/AIDS and E how fear of prosecution and stigma created barriers to accessing HIV prevention services, in his concurring opinion. This Court observed that: “508. The silence and secrecy that accompanies institutional discrimination may foster conditions which encourage escalation of the incidence of HIV/AIDS. The key population is stigmatized F by health providers, employers and other service providers. As a result, there exist serious obstacles to effective HIV prevention and treatment as discrimination and harassment can hinder access to HIV and sexual health services and prevention programmes. ” 22.
Although the actions of RMPs done in good faith under the G MTP Act are protected under Section 8, the spectre of criminalization 24 Dipika Jain, Time to Rethink Criminalisation of Abortion? Towards a Gender Justice Approach, 12 NUJS Law Review 2 (2019) 25 S. Khushboo v. Kanniammal, (2010) 5 SCC 600; Shreya Singhal v. Union of India, (2015) 5 SCC 1 26 (2018) 10 SCC 1 H X v. PR. SECY. , HEALTH & FAMILY WELFARE DEPTT. , GNCT 711 DELHI [DR DHANANJAYA Y CHANDRACHUD, J. ] casts a chilling effect on them. The fear faced by RMPs of prosecution A under the penal provisions often leads to unnecessary delays. It is a common yet lamentable practice for RMPs to insist on compliance with extra-legal conditions such as consent from the woman’s family, 27 documentary proofs, or judicial authorisation. If the woman fails to comply with these additional requirements, RMPs frequently decline to B provide their services in conducting legal abortions. 23.
These extra-legal requirements have no basis in law. As noted above, it is only the woman’s consent (or her guardian’s consent if she is a minor or mentally ill) which is material. RMPs must refrain from imposing extra-legal conditions on women seeking to terminate their pregnancy in C accordance with the law. They need only ensure that the provisions of the MTP Act (along with the accompanying rules and regulations) are complied with. 24. Before the MTP Amendment Act 2021 was enacted, the petitioners in a number of cases before the High Courts also sought D permission to terminate pregnancy where the gestation was below twenty 28 weeks. The unamended MTP Act clearly stated that termination of pregnancy between twelve and twenty weeks was permissible when two RMPs opined that the request for termination of pregnancy meets 29 either of the four grounds mentioned in Section 3(2). Thus, there was no legal requirement to refer cases within the legal limit of twenty weeks E to the courts.
These cases represent the barriers faced by women in accessing safe and legal abortions, even when their decision to terminate their pregnancy is permitted by the law. 25. This Court has recognized the disastrous effects of unnecessary delays and lack of promptitude in the attitude of authorities when dealing F 30 with termination of pregnancies. In Z v. State of Bihar, this Court 27 Centre for Reproductive Rights, “Reform to Address Women’s and Girl’s need for Abortion after 20 weeks “ (2018) 28 See XYZ v. State of Maharashtra, 2018 SCC OnLine Bom 13751; Prabhavati Dattatray Jadhav v. State of Maharashtra, 2021 SCC Online Bom 9339; ABC v. State of Maharashtra, (2018) 4 Mah LJ 374, 2018 SCC Online Bom 144; A v. State of G Maharashtra, 2022 SCC OnLine Bom 1361; D. Rajeswari v. State of Tamil Nadu, 1996 Cri 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 Tamil Nadu, 2021 SCC Online Mad 5047; M. Kala v. T he Inspector of Police, 2015 SCC OnLine Mad 7767 29 Section 3(2)(b), MTP Act 1971 30 (2018) 11 SCC 572 H 712 SUPREME COURT REPORTS [2022] 7 S. C. R. A found that the state authorities, including Patna Medical College and Hospital, had erred in failing to terminate the pregnancy before the passage of twenty weeks, despite the woman seeking an abortion on the ground that she was a victim of rape. This Court also rebuked the “negligence and carelessness” of the authorities in failing to terminate the pregnancy as permitted by law. It noted that the proceedings in the B High Court were unduly delayed, leading to a situation where the pregnancy could not be terminated without endangering the life of the woman in question. Compensation was awarded to the petitioner (i. e. , the pregnant woman). ii. Social stigma surrounding unmarried women C 26.
An RMP’s decision to provide medical termination of a pregnancy is also influenced by social stigma surrounding unmarried women and pre-marital sex, gender stereotypes about women taking on the mantle of motherhood, and the role of women in society. 27. Due to a widespread misconception that termination of D pregnancies of unmarried women is illegal, a woman and her partner may resort to availing of abortions by unlicensed medical practitioners in facilities not adequately equipped for such medical procedures, leading to a heightened risk of complications and maternal mortality. In Surendra 31 Chauhan v. State of Madhya Pradesh, a two-Judge Bench of this E Court upheld the Madhya Pradesh High Court’s order to convict the accused under Section 314 read with Section 34 of the IPC for causing a woman’s death by miscarriage. According to the facts of the case, the accused was in an “illicit relation” with the deceased, an unmarried woman of twenty-four years.
The deceased woman had become pregnant as a result of this relationship. Both of them had approached F the clinic of a so-called doctor (who was named as a co-accused) to terminate the pregnancy of around 3 months (approximately 12 weeks). The purported doctor was neither an RMP nor was his clinic approved by the government, in terms of the requirements laid down in the MTP Act. During the procedure for the termination of pregnancy, the woman G passed away. This case is illustrative of the dangers of unsafe abortions, undertaken due to the social stigma surrounding pregnancies among unmarried women. 31 (2000) 4 SCC 110 H X v. PR. SECY. , HEALTH & FAMILY WELFARE DEPTT. , GNCT 713 DELHI [DR DHANANJAYA Y CHANDRACHUD, J. ] 28. The social stigma that women face for engaging in pre-marital A sexual relations prevents them from realizing their right to reproductive health in a variety of ways.
They have insufficient or no access to knowledge about their own bodies due to a lack of sexual health education, their access to contraceptives is limited, and they are frequently unable to approach healthcare providers and consult them with respect to their B reproductive health. Consequently, unmarried and single women face additional obstacles. 29. The social stigma surrounding single women who are pregnant is even greater and they often lack support from their family or partner. This leads to the proliferation of persons not qualified / certified to practice C medicine. Such persons offer the possibility of a discreet abortion and many women may feel compelled by their circumstances to engage the services of such persons instead of opting for a medically safe abortion. As illustrated in Surendra Chauhan (supra), this often leads to disastrous consequences for the woman.
Keeping in view these barriers to accessing reproductive healthcare, we now turn to the interpretation of Section D 3(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 unmarried E women, single women, or women without a partner under its ambit. The answer may be discerned by imparting a purposive interpretation to Rule 3B. 31. The cardinal principle of the construction of statutes is to identify the intention of the legislature and the true legal meaning of the enactment. F The intention of the legislature is derived by considering the meaning of the words used in the statute, with a view to understanding the purpose or object of the enactment, the mischief, and its corresponding remedy 32 that the enactment is designed to actualise. Ordinarily, the language used by the legislature is indicative of legislative intent. In Kanailal Sur 33 v.
Paramnidhi Sadhu Khan, Gajendragadkar, J. (as the learned Chief G 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 SCC 139 33 AIR 1957 SC 907 H 714 SUPREME COURT REPORTS [2022] 7 S. C. R. A Justice then was) opined that “the first and primary rule of construction is that the intention of the Legislature must be found in the words used by the Legislature itself. ” But when the words are capable of bearing two or more constructions, they should be construed in light of the object and purpose of the enactment. The purposive construction of the provision 34 must be “illumined by the goal, though guided by the word. ” Aharon B Barak opines that in certain circumstances this may indicate giving “an 35 unusual and exceptional meaning” to the language and words used.
Before we engage in the exercise of purposive construction, we must caution that a court’s power to purposively interpret a statutory text does not imply that a judge can substitute legislative intent with their C own individual notions. The alternative construction propounded by the judge must be within the ambit of the statute and should help carry out the purpose and object of the Act in question. 32. The interpretation of a subordinate legislation should be 36 consistent with the enabling Act. A subordinate legislation must be D reasonable and in consonance with the legislative policy. It should be interpreted in a meaningful manner, so as to give effect to the purpose and object of the enabling Act. The interpretation which is in consonance with the statutory scheme and gives effect to the statute must be adopted. 33. In Principles of Statutory Interpretation by Justice G. P.
Singh, it is stated that a statute must be read in its context when attempting to E 37 interpret its purpose. Context includes reading the statute as a whole, referring to the previous state of law, the general scope of the statute, surrounding circumstances and the mischief that it was intended to 38 remedy. The treatise explains that: “For ascertaining the purpose of a statute one is not restricted to F the 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- G Managing Director, New India Assurance Co. Ltd. (1992) 1 SCR 220; St Johns Teachers Training 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 of India v. Peerless General Finance and Investment Co. Ltd. , (1987) 1 SCC 424 H X v. PR. SECY. , HEALTH & FAMILY WELFARE DEPTT. , GNCT 715 DELHI [DR DHANANJAYA Y CHANDRACHUD, J. ] the statute taken as a whole is the most important material for A ascertaining both the aspects of ‘intention’. Without intending to lay down a precise and exhaustive list of external aids, Lord Somervell has stated: “The mischief against which the statute is directed and, perhaps though to an undefined extent the surrounding circumstances can be considered. Other statutes in pari materia B and the state of the law at the time are admissible.
” These external aids are also brought in by widening the concept of ‘context’ “as including not only other enacting provisions of the same statute, but its preamble, the existing state of the law, other statutes in pari materia, and the mischief which the statute was intended to remedy. ” In the words of Chinappa Reddy, J. : “Interpretation must C depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know D why it was enacted. ” 34.
The rule of purposive interpretation was first articulated in 39 Heydon’s case in the following terms: “for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common E law) 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 common law did not provide. F 3rd. What remedy Parliament hath resolved and appointed to cure the disease of the commonwealth. And, 4th. The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle G inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico” 39 (1584) 3 Co Rep 7a H 716 SUPREME COURT REPORTS [2022] 7 S. C. R.
40 A 35. In Bengal Immunity Co. v. State of Bihar, the Constitution Bench applied the mischief rule in Heydon’s case in the construction of Article 286 of the Constitution. In Kehar Singh v. State (Delhi 41 Admn. ), a three-judge Bench of this Court held: “231. During the last several years, the “golden rule” has been B given a go-by. We now look for the “intention” of the legislature or the “purpose” of the statute. First, we examine the words of the statute. If the words are precise and cover the situation in hand, we do not go further. We expound those words in the natural and ordinary sense of the words. But, if the words are ambiguous, uncertain or any doubt arises as to the terms employed, we deem C it as our paramount duty to put upon the language of the legislature rational meaning. We then examine every word, every section and every provision. We examine the Act as a whole. We examine the necessity which gave rise to the Act.
We look at the mischiefs which the legislature intended to redress. We look at the whole D situation and not just one-to-one relation. We will not consider any provision out of the framework of the statute. We will not view the provisions as abstract principles separated from the motive force behind. We will consider the provisions in the circumstances to which they owe their origin. We will consider the provisions to ensure coherence and consistency within the E law as a 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 when F the Bill was presented to Parliament, the reports of the Committee, if any, preceding the Bill, legislative history, other statutes in pari materia and legislation in other States which pertain to the same subject matter, persons, things or relations.
Internal aids are: Preamble, scheme, enacting parts of the statutes, G rules of languages and other provisions in the statutes. ” 36. A catena of decisions emanating from this Court, including 42 Kerala Fishermen’s Welfare Fund Board v. Fancy Food, Bharat 40 (1955) 2 SCR 603 41 (1988) 3 SCC 609 42 (1995) 4 SCC 341 H X v. PR. SECY. , HEALTH & FAMILY WELFARE DEPTT. , GNCT 717 DELHI [DR DHANANJAYA Y CHANDRACHUD, J. ] Singh v. Management of New Delhi Tuberculosis Centre, New A 43 44 Delhi, Bombay Anand Bhavan Restaurant v. ESI Corpn. , Union 45 of India v. Prabhakaran Vijaya Kumar, settle the proposition that progressive and beneficial legislation must be interpreted in favour of the beneficiaries when it is possible to take two views of a legal provision. 46 37. In S. Gopal Reddy v. State of A. P. , while interpreting the B Dowry Prohibition Act 1961 (a beneficial legislation), this Court interpreted the meaning of “dowry” by adopting the purposive interpretation approach: “12.
It is a well-known rule of interpretation of statutes that the text and the context of the entire Act must be looked into while C interpreting any of the expressions used in a statute. The courts must look to the object which the statute seeks to achieve while interpreting any of the provisions of the Act. A purposive approach for interpreting the Act is necessary. We are unable to persuade ourselves to agree with Mr Rao that it is only the property or D valuable security given at the time of marriage which would bring the same within the definition of “dowry” punishable under the Act, as such an interpretation would be defeating the very object for which the Act was enacted. Keeping in view the object of the Act, “demand of dowry” as a consideration for a proposed marriage would also come within the meaning of the expression E dowry under the Act.
If we were to agree with Mr Rao that it is only the “demand” made at or after marriage which is punishable under Section 4 of the Act, some serious consequences, which the legislature wanted to avoid, are bound to follow. Take for example a case where the bridegroom or his parents or other F relatives make a “demand” of dowry during marriage negotiations and later on after bringing the bridal party to the bride’s house find that the bride or her parents or relatives have not met the earlier “demand” and call off the marriage and leave the bride’s house, should they escape the punishment under the Act. The answer has to be an emphatic “no”. It would be adding insult to G injury if we were to countenance that their action would not attract the provisions of Section 4 of the Act. Such an interpretation would 43 (1986) 2 SCC 614 44 (2009) 9 SCC 61 45 (2008) 9 SCC 527 46 (1996) 4 SCC 596 H 718 SUPREME COURT REPORTS [2022] 7 S. C. R.
A frustrate the very object of the Act and would also run contrary to the accepted principles relating to the interpretation of statutes. ” (emphasis in original) This principle has consistently been applied by this Court while construing beneficial legislation. Most recently in KH Nazar v. Mathew B 47 K Jacob, Nageshwar Rao, J. writing for a two-judge Bench observed: “11. Provisions of a beneficial legislation have to be construed with a purpose-oriented approach. The Act should receive a liberal construction to promote its objects. Also, literal construction of the provisions of a beneficial legislation has to be avoided. It is the C court’s duty to discern the intention of the legislature in making the law. Once such an intention is ascertained, the statute should receive a purposeful or functional interpretation. ” ii. Transcending the institution of marriage as a source of rights D 38.
While much of law’s benefits were (and indeed are) rooted in the institution of marriage, the law in modern times is shedding the notion that marriage is a precondition to the rights of individuals (alone or in relation to one another). Changing social mores must be borne in mind when interpreting the provisions of an enactment to further its object E and purpose. Statutes are considered to be “always speaking. ”48 49 39. In Badshah v. Urmila Badshah Godse, this Court reaffirmed that the law should be interpreted in terms of the changing needs of the times and circumstances. AK Sikri, J. speaking for a two-judge Bench of this Court, observed that it is the duty of courts to bridge F the gap between law and society by advancing a purposive interpretation of statutes: “16. The law regulates relationships between people. It prescribes patterns of behaviour. It reflects the values of society.
The role of the court is to understand the purpose of law in society and to G help the law achieve its purpose. But the law of a society is a living organism. It is based on a given factual and social reality that 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 H X v. PR. SECY. , HEALTH & FAMILY WELFARE DEPTT. , GNCT 719 DELHI [DR DHANANJAYA Y CHANDRACHUD, J. ] societal change and is even intended to stimulate it. In most cases, A however, a change in law is the result of a 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 to change in social reality is the life of the law. It can be said that the history of law is the history of adapting the law to society’s B changing needs.
In both constitutional and statutory interpretation, the court is supposed to exercise discretion in determining the proper relationship between the subjective and objective purposes of the law. ” (emphasis supplied) C 40. In Navtej Singh Johar (supra), this Court emphasized the transformative nature of our Constitution. Transformative constitutionalism promotes and engenders societal change by ensuring that every individual is capable of enjoying the life and liberties guaranteed under the Constitution. This Court observed that transformative D constitutionalism places a duty on the judiciary to “ensure and uphold the supremacy of the Constitution, while at the same time ensuring that a sense of transformation is ushered constantly and endlessly in the society by interpreting and enforcing the Constitution as well as other provisions 50 of law in consonance with the avowed object. ” E a. Modern or atypical forms of familial relationships 41.
The law must remain cognizant of the fact that changes in society have ushered in significant changes in family structures. In S. 51 Khusboo v. Kanniammal, a three-judge Bench of this Court acknowledged that live-in relationships and pre-marital sex should not be associated with the lens of criminality. The Court observed: F “46. […] While there can be no doubt that in India, marriage is an important social institution, we must also keep our minds open to the fact that there are certain individuals or groups who do not hold the same view. To be sure, there are some indigenous groups within our country wherein sexual relations outside the marital G setting are accepted as a normal occurrence. Even in the societal mainstream, there are a significant number of people who see nothing 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 H 720 SUPREME COURT REPORTS [2022] 7 S. C. R.
A morality are inherently subjective and the criminal law cannot be used as a means to unduly interfere with the domain of personal autonomy. Morality and criminality are not coextensive. ” 52 42. In Deepika Singh v. Central Administrative Tribunal, a two-Judge Bench of this Court (of which one of us, Dr. DY Chandrachud, B J. was a part) recognized that family units may manifest in atypical ways: “26. The predominant understanding of the concept of a “family” both in the law and in society is that it consists of a single, unchanging unit with a mother and a father (who remain constant C over time) and their children. This assumption ignores both, the many circumstances which may lead to a change in one’s familial structure, and the fact that many families do not conform to this expectation to begin with. Familial relationships may take the form of domestic, unmarried partnerships or queer relationships.
A household may be a single parent household for any number of D reasons, including the death of a spouse, separation, or divorce. Similarly, the guardians and caretakers (who traditionally occupy the roles of the “mother” and the “father”) of children may change with remarriage, adoption, or fostering. These manifestations of love and of families may not be typical but they are as real as their traditional counterparts. Such atypical manifestations of the E family unit are equally deserving not only of protection under law but also of the benefits available under social welfare legislation. The black letter of the law must not be relied upon to disadvantage families which are different from traditional ones. The same undoubtedly holds true for women who take on the role of F motherhood in ways that may not find a place in the popular imagination. ” 43.
Societal reality, as observed by this Court in Deepika Singh (supra), indicates the need to legally recognize non-traditional manifestations of familial relationships. Such legal recognition is G necessary to enable individuals in non-traditional family structures to avail of the benefits under beneficial legislation, including the MTP Act. b. The equal status of married and unmarried or single women 52 2022 SCC OnLine SC 1088 H X v. PR. SECY. , HEALTH & FAMILY WELFARE DEPTT. , GNCT 721 DELHI [DR DHANANJAYA Y CHANDRACHUD, J. ] 44. Over the years, the Parliament has enacted legislation bringing A about a congruence between the rights of married and unmarried women. The Maternity Benefit Act 1961 was enacted to provide maternity benefits to women employed in any establishment. In terms of Section 5 of the Maternity Benefit Act 1961, the payment of maternity benefits is extended to all women (including unmarried women) by the use of the B phrase “every woman. ” 45.
The Hindu Succession Act 1956 was enacted to codify the law relating to intestate succession among Hindus. Section 6 of the Hindu Succession Act 1956 pertains to devolution of interest in coparcenary property. In terms of this provision a daughter, irrespective of her marital C status, is a coparcener in her own right in the same manner as the son by virtue of the Hindu Succession (Amendment) Act 2005. 46. Section 8 of the Hindu Adoptions and Maintenance Act 1956 stipulates that any female Hindu regardless of her marital status has the capacity to take a son or daughter in adoption. Sections 7 and 8 of the D Guardian and Wards Act 1890 allows for persons to apply for an order of guardianship without making any distinction between men or women, married or unmarried. 47. Through the above enactments, the law has emphasized that unmarried women have the same rights as married women in terms of E adoption, succession, and maternity benefits.
Importantly, these legislations also signify that both married and unmarried women have equal decisional autonomy to make significant choices regarding their own welfare. 48. In the evolution of the law towards a gender equal society, the interpretation of the MTP Act and MTP Rules must consider the social realities of today and not be restricted by societal norms of an age which F has passed into the archives of history. As society changes and evolves, so must our mores and conventions. A changed social context demands a readjustment of our laws. Law must not remain static and its interpretation should keep in mind the changing social context and advance the cause of social justice. G iii. The object and purpose of the MTP Act 49. The purpose or object of an enactment is the mischief at which the enactment is directed and the remedy which the lawmakers have devised to address the mischief. A number of decisions, such as Chiranjit H 722 SUPREME COURT REPORTS [2022] 7 S. C. R.
53 A Lal Chowdhury v. Union of India, A. Thangal Kunju Musaliar v. 54 M. Venkatachalam Potti, State of Himachal Pradesh v. Kailash 55 Chand Mahajan, and National Insurance Co. Ltd. v. Swaran 56 Singh lay down that it is desirable to look into the legislative history and the Statement of Objects and Reasons of an enactment to appreciate the background and state of affairs leading up to the legislation and the B circumstances which were prevalent at the time the statute was enacted. 50. Prior to the enactment of the MTP Act, the medical termination of pregnancy was governed by the IPC. Chapter XVI of the IPC contains a segment titled “Of the causing of miscarriage, of injuries to unborn children, of the exposure of infants, and of the concealment of births”, C with Sections 312 to 318 forming a part of this segment.
Section 312 criminalizes abortion, making any person (including the pregnant woman herself) liable for causing the miscarriage of a woman with an unborn foetus, except where the procedure i
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