By Sanchali Bhowmik
The Indian Courts have cited several notable decisions recognizing women’s reproductive rights as part of the ‘inalienable survival rights’ implicitly protected under the fundamental right to life. While court decisions are not uniform, several trailblazing rulings have boldly affirmed women’s rights to remedies for violations of reproductive rights—including the first case globally to recognize maternal health as a right—and laid the foundation for Indian courts to continue to play a strong role in preventing and addressing ongoing violations of these rights. Reproductive rights are important to all human beings encompassing a spectrum of civil, political, economic, and social rights, from the rights to health and life, to the rights to equality and non-discrimination, privacy, information, and to be free from torture or ill-treatment.
It is the duty of the State to guarantee these rights, especially to the women and girls so that they do not have to deal with or face unsafe abortion and maternal mortality and the opportunity to make fully informed decisions—free from violence, discrimination, and coercion—about their sexuality and reproduction. They should be accessible to comprehensive reproductive health information and services. Violations of reproductive rights disproportionately harm women due to their capacity to become pregnant and legal protection of these rights as human rights is critical to enable gender justice and the equality of women.
Reproductive Rights as Fundamental Rights:
The Constitution of India recognizes many of these same rights as fundamental rights that the government has an obligation to uphold, including the right to equality and non-discrimination (Articles 14 and 15) and the right to life (Article 21) which is understood through jurisprudence to include the rights to health, dignity, freedom from torture and ill-treatment, and privacy. India is also a signatory to numerous international conventions, such as the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW); the International Covenant on Civil and Political Rights (ICCPR); the International Covenant on Economic, Social and Cultural Rights (ICESCR); and the Convention on the Rights of the Child (CRC), all of which recognize reproductive rights. Article 51(c) of the Indian Constitution and the judiciary have established that the government has a constitutional obligation to respect international law and treaty obligations. The government of India also bears a constitutional obligation to ensure legal remedies for violations of fundamental rights and human rights. Article 39(a) requires the government to promote equal access to justice and free legal aid as a means to ensure that “opportunities for justice are not denied to any citizen by reason of economic or other disabilities.”
Reproductive Rights in India:
India was among the first countries in the world to develop legal and policy frameworks guaranteeing access to abortion and contraception, yet women and girls continue to experience significant barriers to the full enjoyment of their reproductive rights, including poor quality of health services and denial of women’s and girls’ decision-making authority. Historically, reproductive health-related laws and policies in India have failed to take a women’s rights-based approach, focusing instead on demographic targets, such as population control, while also implicitly or explicitly undermining women’s reproductive autonomy through discriminatory provisions such as spousal consent requirements for access to reproductive health services. Despite a national law penalizing marriages of girls below 18 years of age, and policies and schemes guaranteeing women maternal healthcare, in practice, India continues to account for the highest number of child marriages and 20% of all maternal deaths globally.
India’s National Population Policy guarantees women voluntary access to the full range of contraceptive methods. In practice, however, state governments continue to introduce schemes promoting female sterilization, including through targets that lead to coercion, risky substandard sterilization procedures, and denial of access to non-permanent methods. In addition, although abortion is legal on multiple grounds until 20 weeks of gestation, and throughout pregnancy when necessary to save the life of the pregnant woman under the Medical Termination of Pregnancy Act (MTP Act), 56% of the 6.4 million abortions estimated to occur in India annually are unsafe and result in 9% of all maternal deaths. U.N. human rights experts and bodies have raised concerns to the Indian government about human rights violations arising from a range of reproductive rights issues, including maternal mortality and morbidity, unsafe abortion and poor quality of post-abortion care, lack of access to the full range of contraceptive methods and reliance on coercive and substandard female sterilization, child marriage, and lack of information and education on reproductive and sexual health. These experts and bodies have called for the Indian authorities to address these violations, as well as disparities in access to reproductive health care. Thus, the Indian Courts have an important role in determining women’s reproductive rights as guaranteed by their constitutional and human rights.
Judicial Recognition of Reproductive Rights as Fundamental and Human Rights:
The Supreme Court of India and several state High Courts have made important strides in recognizing the denial of reproductive rights as a violation of women’s and girls’ fundamental and human rights. This section highlights key decisions that have broken ground in clearly establishing that women’s and girls’ legal rights to reproductive healthcare and autonomy give rise to a range of government obligations, including providing affordable, timely, and quality maternal health care; guaranteeing access to the full range of contraceptive methods in a non-coercive, quality, and target-free manner; preventing child marriage; and ensuring freedom from forced pregnancy through access to safe, legal abortion.
In 2011, the Delhi High Court issued a landmark joint decision in the cases of Laxmi Mandal v. Deen Dayal Harinagar Hospital & Ors. and Jaitun v. Maternity Home, MCD, Jangpura & Ors. concerning denials of maternal health care to two women living below the poverty line. The Court stated that “these petitions focus on two inalienable survival rights that form part of the right to life: the right to health (which would include the right to access and receive a minimum standard of treatment and care in public health facilities) and in particular the reproductive rights of the mother.” Citing CEDAW and ICESCR, the decision held that “no woman, more so a pregnant woman should be denied the facility of treatment at any stage irrespective of her social and economic background…This is where the inalienable right to health which is so inherent in the right to life gets enforced.”
In 2012, the High Court of Madhya Pradesh echoed the Delhi High Court’s judgment in Sandesh Bansal v. Union of India, public interest litigation seeking accountability for maternal deaths, recognizing that “the inability of women to survive pregnancy and childbirth violates her fundamental right to life as guaranteed under Article 21 of the Constitution of India” and “it is the primary duty of the government to ensure that every woman survives pregnancy and childbirth.” Importantly, the Bansal decision specifically rejected financial constraints as a justification for reproductive rights violations, and established that government obligations under Article 21 require immediate implementation of maternal health guarantees in the National Rural Health Mission, including basic infrastructures, such as access to blood, water, and electricity in health facilities; timely maternal health services and skilled personnel; and effective referral and grievance redressal mechanisms where maternal health care is denied.
In 2016, the Supreme Court issued a judgment in the case of Devika Biswas v. Union of India & Ors. that moved beyond the reproductive health framework to also recognize women’s autonomy and gender equality as core elements of women’s constitutionally-protected reproductive rights Claims of violations of reproductive rights arising from coercive and substandard sterilization and the lack of access to the full range of contraceptive methods have been brought before the Supreme Court of India and high courts for over a decade. In Devika Biswas, the Supreme Court established that state policies and programs leading to sterilization abuse violate women’s fundamental and human rights. This decision marks a significant step forward in Indian jurisprudence with regard to reproductive rights which have justified violations of reproductive autonomy due to concerns about population growth. In its decision, the Supreme Court unequivocally held that Article 21 includes the “reproductive rights of a person.” The Supreme Court recognized reproductive rights as both parts of the right to health as well as an aspect of personal liberty under Article 21, and defined such rights to include the right to “access a range of reproductive health information, goods, facilities, and services to enable individuals to make informed, free, and responsible decisions about their reproductive behavior.” The Supreme Court found that “the freedom to exercise these reproductive rights would include the right to make a choice regarding sterilization on the basis of informed consent and free from any form of coercion. Significantly, the Supreme Court also linked government policies focusing on female sterilization to violations of women’s substantive equality. The Supreme Court emphasized the obligation to ensure the “reproductive freedoms” of economically- and socially marginalized groups, expressing concern that informal targets and incentives have deprived them of any “meaningful choice.
In the 2016 case of High Court on its Own Motion v. the State of Maharashtra, the Bombay High Court ruled to improve women prisoners’ access to abortion and strongly affirmed women’s rights to abortion as an aspect of the fundamental right to live with dignity under Article 21. The judgment recognizes that unwanted pregnancies disproportionately burden women and states that forcing a woman to continue a pregnancy “represents a violation of the woman’s bodily integrity and aggravates her mental trauma which would be deleterious to her mental health.” The decision boldly recognizes that an unborn foetus is not an entity with human rights. The pregnancy takes place within the body of a woman and has profound effects on her health, mental well-being, and life. Thus, how she wants to deal with this pregnancy must be a decision she and she alone can make. The right to control their own body and fertility and motherhood choices should be left to the women alone. It is imperative that we maintain the vision of the basic rights of women: the right to autonomy and to decide what to do with their own bodies, including whether or not to get pregnant and stay pregnant.
The cases cited in this article illustrate the significance and the evolving role of the judiciary in India which addresses the legal and practical; barriers which operate to deny women and girls their reproductive rights. While litigation has its challenges, including long time frames and difficulty in implementation of decisions, the robust recognition of reproductive rights as fundamental rights emerging from Indian courts has created a mandate for the government to shift away from population control approaches, confront discriminatory stereotypes that limit women’s authority, and instead center women’s rights to dignity, autonomy, and bodily integrity in reproductive health related laws and policies.
The judiciary also has a key role to play in monitoring the implementation of existing decisions. Further, in the near future, Indian courts will rule in long-pending cases, such as those seeking progressive interpretations or reform of the MTP Act or strengthening of the legal framework prohibiting child marriage, as well as on emerging issues such as surrogacy. The legal guarantees articulated in the judgments discussed above create a strong call to action for the judiciary to continue to defend and uphold women’s reproductive rights defined to include both reproductive health and autonomy including for marginalized populations in upcoming litigation.
Sanchali Bhowmik, a third-year law student at Jindal Global Law School