RAPE VICTIMS HAVE A REPRODUCTIVE CHOICE UNDER ARTICLE 21: BOMBAY HC

RAPE VICTIMS HAVE A REPRODUCTIVE CHOICE UNDER ARTICLE 21: BOMBAY HC

BY- RAHUL AGARWAL

BACKGROUND

In 2017 the Puttaswamy judgment in K.S. Puttaswamy v. Union of India "specifically recognized the constitutional right of women to make reproductive choice, as a part of personal liberty under Article 21 of the Indian Constitution" which gave the same to rape victims. In this landmark judgment, a bench of nine judges held right to privacy as fundamental rights a key aspect of this personal autonomy is reproductive rights, which entail rights to make sexual and reproductive decisions, as recognized by the 1994 United Nations International Conference on Population and Development.

The bench mentioned the position adopted by a three-judge bench in Suchita Srivastava v Chandigarh Administration (2009), which held that reproductive rights include a woman’s entitlement to carry a pregnancy to its full term, to give birth, and to subsequently raise children; and that these rights form part of a woman’s right to privacy, dignity, and bodily integrity. 

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CURRENT ISSUE

The Bombay High Court in its recent judgment held that though it is allowed a rape victims to terminate her pregnancy at her own risk, also reminded her that she has an option to give the child in adoption which comes under the various reproductive choice . 

This decision of the HC came when a girl approached the Court complaining that her ex-lover on the pretext of marrying her sexually exploited her and thereby cheated her. She told Court that she does not want to carry the stigma of the unwed mother during her entire life due to the act of the accused and thus want to abort the pregnancy, which is more than 20 weeks now.

After studying the medical report of the victim the bench comprising Justice PN Deshmukh and Justice Pushpa V. Ganediwala observed that her case falls within the criteria as laid down in section 3 of the Medical Termination of Pregnancy Act.

Section 3 of the Medical Termination of Pregnancy Act 1971 states that only registered medical practitioners can terminate a woman’s pregnancy if they believe in good faith that continuing the pregnancy would involve a risk to the woman’s life or gravely injure her physical or mental health; or that the child would be seriously handicapped by physical or mental abnormalities. If the woman has been pregnant for less than 12 weeks, the permission of one medical practitioner is required, and if the pregnancy is between 12 and 20 weeks, the authorization of two medical practitioners is mandatory. Beyond 20 weeks, Section 5 of the act applies, which permits abortion only in situations where the medical practitioner believes that abortion is immediately necessary to save the woman's life. 

The bench separately highlighted Article 21, which guarantees the fundamental right to life and personal liberty, and entails a “just, reasonable, and fair” test in the case of Maneka Gandhi v Union of India1978, that is, any law restricting Article 21 must be “just, reasonable, and fair” to remain constitutionally valid.  

Article 21 enables the victim and the fetus to live their lives with dignity and without any pressure from society.

In India, it is the society that harasses the victim or the child of the victim at different places that violate their right to life. Article 15 gives the victim the right to privacy to do whatever she wants and can abort the pregnancy at any moment of her pregnancy but with the consultation of the doctor and knowing the consequences of that she should take any step. The victim can also take her baby in adoption and she will be assured that her identity will never be disclosed and the baby will live a happy life.

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CONCLUSION

The bench said that woman alone has the right to control her body, fertility, and motherhood choices. It also addressed the status of the legitimate state interest in protecting potential life. It stated that since pregnancy takes place within a woman's body and profoundly affects her health, mental well-being, and life, an unborn fetus cannot be put on a higher pedestal than the rights of a living woman. 

Even if the Bombay HC and Supreme Court has allowed abortion beyond 20 weeks of pregnancy there is a risk of death and many physical and mental injuries to the fetus and the woman. Therefore it is highly recommended by the Court that before taking any step the victim should consult a doctor.