The Supreme Court in X v NCT of Delhi : feminist expectations, feminist foregrounding but feminist outcomes?

ABSTRACT

This case note discusses the 2022 Supreme Court of India’s judgement in X v NCT of Delhi & Anr in which the Supreme Court has held that termination of pregnancies between 20 and 24 weeks is available to all women who are undergoing any “change in their material circumstances”. Delving into the reasoning used by the Supreme Court, this case note argues that while the case engages in a sound contextualization of women’s problems with the legal regime on abortion in India and the use of a rights-based language, it does little more to improve access to abortion in India. The case note tests the judgement using the methodologies from the feminist judgement-writing project.

KEYWORDS:

• Abortion
• medical termination of pregnancy
• single women
• feminist judgement

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

¹ ‘Must imbibe feminist views in law: Supreme Court judge DY Chandrachud’ Hindustan Times (New Delhi, 16 October 2022) <https://www.hindustantimes.com/india-news/must-imbibe-feminist-views-in-law-sc-judge-dhananjaya-y-chandrachud-101665857468431.html> accessed 12 November 2022.

² X v Principal Secretary, NCT of Delhi & Anr, Civil Appeal No 5802 of 2022 (Supreme Court, 29 September 2022) <https://main.sci.gov.in/supremecourt/2022/21815/21815_2022_2_1501_38628_Judgment_29-Sep-2022.pdf> accessed 15 November 2022.

³ MTP Act as amended by the Medical Termination of Pregnancy (Amendment) Act 2021.

⁴ X v Principal Secretary, NCT of Delhi & Anr, WP (C) 10602/2022 and CM Application 30708/2022 (Delhi High Court, 15 July 2022).

⁵ MTP Act, s 3(2)(b) read with Rule 3B of Medical Termination of Pregnancy Rules 2021 (n 3).

⁶ X v NCT of Delhi & Anr, SLP (Civil) No 12612 of 2022 (Supreme Court, 21 July 2022). The Judgment records that a termination was carried out based on the report of the Medical Board.

⁷ ibid 7.

⁸ See Anubha Rastogi, ‘A decisive shift in the discourse on abortion rights’ The Hindu (4 October 2022) <https://www.thehindu.com/opinion/op-ed/a-decisive-shift-in-the-discourse-on-abortion-rights/article65967146.ece> accessed 15 January 2023; Ayushi Agarwal, “A Step Forward for Abortion Rights and a Blow to the Marital Rape Exception” (2022) 57(47) Economic and Political Weekly. By terming the Judgment unique, what is intended is that both the contextualization of the issue of abortion, as well as the legal issue of interpretation of the rule in question, were unique. The Indian abortion jurisprudence otherwise also carries feminist critiques of the law on abortion. For more on this see Surabhi Singh, ‘The Puttaswamy Effect: Exploring the Right to Abortion in India’ (2021) Centre for Communication Governance at NLU Delhi <https://privacylibrary.ccgnlud.org/case/the-puttaswamy-effect-exploring-the-right-to-abortion-in-india> accessed 19 January 2023.

⁹ X v Principal Secretary (n 2) 9.

¹⁰ ibid 13.

¹¹ For more context on this, see Section 2.

¹² X v Principal Secretary (n 2) 19.

¹³ ibid 20–21.

¹⁴ ibid 44–45.

¹⁵ The Wire Staff, ‘SC to Hear Petitions Challenging Marital Rape Exception in March’ The Wire (New Delhi, 17 January 2023) <https://thewire.in/law/sc-to-hear-petitions-challenging-marital-rape-exception-in-march> accessed 21 January 2023.

¹⁶ X v Principal Secretary (n 2) 56.

¹⁷ ibid 48.

¹⁸ ibid 41.

¹⁹ ibid 60–62.

²⁰ ibid 72.

²¹ The Project started in Canada as “the Women’s Court of Canada”. See Diana Majury, ‘Introducing the Women’s Court of Canada’ [2006] 18(1) Canadian Journal of Women and the Law 4. Since then, it has appeared in many parts of the world. I use the term “Feminist Judgment Projects” loosely to refer to all projects everywhere although in some contexts it has only been used for the English judgement writing projects. To know more about the England and Wales Project see: Rosemary Hunter, Clare McGlynn and Erica Rackley (eds), Feminist Judgments: From Theory to Practice (Hart Publishing 2010); Feminist Judgments Project <http://www.kent.ac.uk/law/fjp/resources/teaching_resources.html> accessed 12 December 2022; Project in the USA: < https://law.unlv.edu/us-feminist-judgments> accessed 12 December 2022; Kathryn Stanchi and Christine M Chinkin, ‘Women’s International Tribunal on Japanese Military Sexual Slavery’ [2001] 95(2) American Journal of International Law 335; For the project in Australia see: Heather Douglas et al (eds), Australian Feminist Judgments: Righting and Rewriting Law (Hart Publishing 2014). For the project in Ireland see: Máiréad Enright, Julie McCandless and Aoife O’Donoghue (eds), Northern/Irish Feminist Judgments: Judges’ Troubles and the Gendered Politics of Identity (Hart Publishing 2017). For the project in New Zealand see: Elisabeth McDonald et al (eds), Feminist Judgments of Aotearoa New Zealand – Te Rino: A Two-Stranded Rope (Hart Publishing 2017). For the project in Scotland: Sharon Cowan, Chloë Kennedy and Vanessa E Munro (eds), Scottish Feminist Judgments: (Re)Creating Law from the Outside In (Hart Publishing 2019). For the project in India see: Aparna Chandra, Jhuma Sen and Rachna Chaudhary, “Introduction: The Indian feminist judgements project” (2021) Indian Law Review 5(3) 261–264. It is a collaborative effort of academics, activists, lawyers, and judges who have written on many topics of substantive law.

²² See Kathyrn M Stanchi, Linda L Berger and Bridget J Crawford, “Introduction to the US Feminist Judgements Project” in Kathyrn M Stanchi, Linda L Berger and Bridget J Crawford (eds), Feminist Judgments: Rewritten Opinions of the United States Supreme Court (Cambridge University Press 2016).

²³ See the IPC, ss 312–318.

²⁴ See MTP Act, s 3(1).

²⁵ MTP Act, s 3(2) Explanation 2.

²⁶ The Medical Termination of Pregnancy Amendment Act 2021 <https://egazette.gov.in/WriteReadData/2021/226130.pdf> accessed 15 December 2022.

²⁷ ibid s 3(2) Explanation 1.

²⁸ The categories prior to the Judgment were: (a) Survivors of sexual assault or rape or incest; (b) minors; (c) change of marital status during the ongoing pregnancy (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) 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) women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the Government.

²⁹ X v Principal Secretary (n 2) 32.

³⁰ ibid 34.

³¹ Committee of Empowerment of Women, Lok Sabha, Fourth Report (Seventeenth Lok Sabha) on the action taken by the Government on the recommendations contained in the Eleventh Report (Sixteenth Lok Sabha) on Women’s Healthcare: Policy Options, 2021.

³² Dr Harsh Vardhan, Lok Sabha Debates, Vol VIII, Third Session, 2020/1041, No 19 (17 March 2020).

³³ X v Principal Secretary (n 2) 39.

³⁴ ibid 47.

³⁵ ibid 54.

³⁶ ibid (emphasis supplied).

³⁷ See Dipika Jain and Brian Tronic, ‘Conflicting abortion laws in India: Unintended barriers to safe abortion for adolescent girls’ [2019] 4(4) Indian Journal of Medical Ethics 310 <https://ijme.in/articles/conflicting-abortion-laws-in-india-unintended-barriers-to-safe-abortion-for-adolescent-girls/> accessed 20 January 2023; Pratigya Campaign, Assessing the Judiciary’s Role in Access to Safe Abortion (2019) <https://pratigyacampaign.org/wp-content/uploads/2019/11/assessing-the-judiciarys-role-in-access-to-safe-abortion.pdf> accessed 21 January 2023 (“Pratigya Campaign”).

³⁸ See Dipika Jain, ‘Time to Rethink Criminalisation of Abortion? Towards a Gender Justice Approach’ [2019] 12 NUJS Law Review 2.

³⁹ X v Principal Secretary (n 2) 17–19.

⁴⁰ Erica Millar, ‘Here’s why there should be no gestational limits for abortion’ The Conversation (12 August 2019) <https://theconversation.com/heres-why-there-should-be-no-gestational-limits-for-abortion-121500> accessed 14 January 2023. The WHO abortion care guidelines discuss abortion care and methods at any stage of the pregnancy, insisting on an evidence-based practice. World Health Organization, Abortion Care Guidelines 2022. <https://srhr.org/abortioncare/chapter-2/recommendations-relating-to-regulation-of-abortion-2–2/law-policy-recommendation-3-gestational-age-limits-2-2-3/> accessed 18 May 2023 (“WHO Guidelines”); See Megan K Donovan, ‘Gestational Age Bans: Harmful at Any Stage of Pregnancy’ Guttmacher Institute (9 January 2020) <https://www.guttmacher.org/gpr/2020/01/gestational-age-bans-harmful-any-stage-pregnancy> accessed 17 January 2023.

⁴¹ UD Upadhyay et al, ‘Denial of abortion because of provider gestational age limits in the United States’ [2014] 104(9) American Journal of Public Health 1687–94.

⁴² See the Medical Termination of Pregnancy (Amendment) Bill 2020, <https://prsindia.org/files/bills_acts/bills_parliament/2020/The%20Medical%20Termination%20of%20Pregnancy%20(Amendment)%20Bill,%202020.pdf> accessed 24 September 2023.

⁴³ See Committee of Empowerment of Women (2020–2021), “Fourth Report (Seventeenth Lok Sabha) on the action taken by the Government on the recommendations contained in the Eleventh Report (Sixteenth Lok Sabha) on Women’s Healthcare: Policy Options” (2021) 33.

⁴⁴ WHO Guidelines (n 40) 22.

⁴⁵ ibid 26.

⁴⁶ X v Principal Secretary (n 2) 55 (emphasis supplied).

⁴⁷ ibid 52.

⁴⁸ ibid 55.

⁴⁹ See Pratigya Campaign (n 37).

⁵⁰ X v Principal Secretary (n 2) 16–20.

⁵¹ ibid 30–31, 34.

⁵² ibid 34.

⁵³ ibid 37.

⁵⁴ ibid 55–58. See also KS Puttaswamy v Union of India (2017) 10 SCC 1.

⁵⁵ X v Principal Secretary (n 2) 62–66.

⁵⁶ ibid 68.

⁵⁷ ibid 69.

⁵⁸ In 1964, the Government of India had set up the Shanti Lal Shah Committee to look into the issue of high maternal morbidity due to unsafe and illegal abortions. In the “Report of the Committee to Study the Question of Legalisation of Abortion” released in 1967 by the Ministry of Health and Family Planning, there is a lot of focus on induced abortions carried out without proper medical supervision contributing to maternal morbidities, while also being relevant for family planning. See ibid 39–40, 45–46.

⁵⁹ ibid. Also see Nivedita Menon, ‘‘The Impossibility of `Justice’: Female Foeticide and Feminist Discourse on Abortion’ [1995] 29(1–2) Contributions to Indian Sociology 369, 369–392; Sripati Chandrasekhar, Abortion in a Crowded World: The Problem of Abortion with Special Reference to India. (University of Washington Press 1974) 89.

⁶⁰ Nivedita Menon, Recovering Subversion: Feminist Politics Beyond the Law (Orient Blackswan Private Limited 2007) 73.

⁶¹ Varsha Chitnis and Danaya Wright, ‘The Legacy of Colonialism: Law and Women’s Rights in India’ [2007] 64 Washington and Lee Law Review 1315. Also see the Abortion Act 1967 (United Kingdom) <https://www.legislation.gov.uk/ukpga/1967/87/contents/enacted> accessed 26 May 2023; Durba Mitra, Indian Sex Life: Sexuality and the Colonial Origins of Modern Social Thought (Princeton University Press, 2020) 99–133.

⁶² See KS Puttaswamy v Union of India (n 54). For more on the absence of a right to abortion on demand and the potential of a privacy discourse, see Singh, ‘The Puttaswamy Effect: Exploring the Right to Abortion in India’ (n 8).

⁶³ For a detailed discussion on the potential of an equality-based claim in the Indian abortion context, see Gauri Pillai, ‘Guest Post: Abortion and Equality – Building Upon the Supreme Court’s Judgment in X v NCT’ (Indian Constitutional Law and Philosophy, 4 October 2022) <https://indconlawphil.wordpress.com/2022/10/04/guest-post-abortion-and-equality-building-upon-the-supreme-courts-judgment-in-x-v-nct/> accessed 21 January 2023.

⁶⁴ Bridget J Crawford, Kathryn M Stanchi and Linda L Berger, ‘Feminist Judging Matters: How Feminist Theory and Methods Affect the Process of Judgment’ [2018] 47 University of Baltimore Law Review 168.

⁶⁵ Rosemary Hunter, ‘Feminist Judging in the ‘Real World’’ [2017] 8(9) Oñati Socio-legal Series 1281.

⁶⁶ See Swati Bhasin, ‘Why don’t we have more women judges?’ Chief Justice shares views at HTLS 2022’ Hindustan Times (New Delhi, 7 December 2022) <https://www.hindustantimes.com/india-news/hindustan-times-leadership-summit-2022-why-don-t-we-have-more-women-judges-chief-justice-dy-chandrachud-shares-views-at-htls-2022–101668239165657.html> accessed 21 January 2023; Press Trust of India, ‘Legal Profession Feudal, Patriarchal And Not Accommodative For Women: CJI DY Chandrachud’ Outlook India (12 November 2022) <https://www.outlookindia.com/national/legal-profession-feudal-patriarchal-and-not-accommodative-for-women-cji-dy-chandrachud-news-236852> accessed 21 January 2023; ‘Equality Not Achieved With Decriminalizing Homosexuality Alone; Must Extend To Home, Workplace & Public Places: Justice DY Chandrachud’ Live Law (01 September 2022)

<https://www.livelaw.in/top-stories/equality-decriminalizing-homosexuality-home-workplace-public-places-justice-dy-chandrachud-208102> accessed 21 January 2023.

⁶⁷ See the discussion on intersectionality, caste, disability, and gender in Patan Jamal Vali v State of Andhra Pradesh, Criminal Appeal No 452 of 2021 (Supreme Court, 27 April 2021); discussion on women’s roles within marriage in Joseph Shine v Union of India (2019) 3 SCC 39.

⁶⁸ Carol Smart, Feminism and the Power of Law (Routledge 2002) 11–14.

⁶⁹ Catherine Albertyn, ‘Defending and Securing Rights through Law: Feminism, Law and the Courts in South Africa’ [2005] 32(2) Politikon 220. Mary Jane Mossman, ‘Feminism and Legal Method: The Difference It Makes’ [1986] 3 Australian Journal of Law and Society 32. Mossman argues that there is often a conflict between the judicial description of women and the known conditions in which women live, that suggests that judges act in abstract when writing of lives of women, preferring to use ideas of (male) philosophers, judges, scientists than real lives of actual women, ibid 37.

⁷⁰ Erika Rackley, ‘Why Feminist Legal Scholars Should Write Judgments: Reflections on the Feminist Judgments Project in England and Wales’ [2012] 24(2) Canadian Journal of Woman and the Law 390, 390–392.

⁷¹ ibid.

⁷² See Katharine T Bartlett, ‘Feminist Legal Scholarship: A History Through the Lens of the California Law Review’ [2012] 100 California Law Review 381, 426–427.

⁷³ ibid. See also Christine Boyle, ‘Sexual assault and the feminist judge’ [1985] 1 Canadian Journal of Women and the Law 93.

⁷⁴ ABC v State of Maharashtra, Writ Petition (ST) No 1357 of 2023 (Bombay High Court, 20 January 2023) 13–18.

⁷⁵ See Somita Pal, ‘Hospitals need to follow SC ruling on late abortion’ Hindustan Times (Mumbai, 11 January 2023) <https://www.hindustantimes.com/cities/mumbai-news/hospitals-need-to-follow-sc-ruling-on-late-abortion−101,673,377,428,197html> accessed 25 January 2023. Interestingly, on 16 October 2023, a three-judge bench of the SC refused to allow abortion at 26 weeks in the case of a married woman, however, it neither relied on nor cited the Judgement. See X v Union of India & Anr, Writ Petition (Civil) No 1137 of 2023 (Supreme Court, 16 October 2023).