Delhi: “It was an out-of-the-world moment for both of us,” Advocate Amit Mishra told Article-14 in an interview after the Supreme Court of India delivered a landmark judgement on 29 September, ruling that all women, irrespective of their marital status, have the right to abortion between 20-24 weeks, interpreting the Medical Termination of Pregnancy Act (MTPA), to include unmarried and single women whose pregnancy arise out of a consensual relationship.
Mishra was referring to the Supreme Court’s interim order two months earlier, permitting his client, a 25-year-old unmarried woman who was in a consensual relationship and wanted to terminate her pregnancy after her partner refused to get married, to get an abortion.
The three-judge bench of the Supreme Court, comprising Justices D Y Chandrachud, A S Bopanna and J B Pardiwala, also recognised that nonconsensual sex with her husband was rape and gave a woman the right to an abortion.
Refusing interim relief to the 25-year-old woman in July, the Delhi High Court bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad ruled the MTPA did not cover unmarried women whose pregnancy arose from a consensual relationship.
In the 29 September judgment, delivered on World Safe Abortion Day, the Supreme Court said the Delhi High Court took an “unduly restrictive view” of the MTPA.
For Mishra, the judgment, hailed as a huge step forward for reproductive rights and personal autonomy for women in India, is a significant achievement. The 36-year-old, who completed his PhD from the Faculty of Law, University of Delhi, in 2016, has been practising as an independent lawyer in the Delhi courts for the past six years.
Mishra, whose expertise lies in criminal law, business law and medico-legal cases, also represented a 16-year-old who sought the termination of her 18-week pregnancy that arose out of a consensual relationship.
Government and private hospitals had said no to terminating the pregnancy until the matter was reported to the police under Section 19(1) of the Protection of Children from Sexual Offences Act (POCSO), 2012. The minor’s mother was asking for the abortion without reporting the matter to the police on the grounds that her daughter became pregnant due to a consensual relationship.
After hearing the matter, a division bench of Delhi High Court Chief comprising Justice Satish Chandra Sharma and Justice Subramonium Prasad on September 22, ordered the abortion, ruling that the welfare of the minor was paramount and any report registered by the police under POCSO must be kept in a sealed cover.
The Supreme Court, in its latest abortion verdict, read down the mandatory reporting under the POCSO Act if the minor and their guardian request so, ruling that a doctor is permitted to withhold the name and identity of the minor girl in the information given to the police and called for a “harmonious” reading of the MTPA and POCSO.
In this interview, Mishra gave a blow-by-blow account of the short yet significant legal journey behind the historic judgment on abortion rights, its emotional toll, and why it was worth the effort.
How did you get this case? What were the legal arguments you made?
In July this year, a petitioner came to me, who was 23 weeks and one day pregnant at the time and wanted to terminate her pregnancy. But she could not get it done as all the hospitals, whether private or public, were refusing because she was at the last/matured stage of pregnancy and therefore did not fall in the eligible category for a medical termination. Because according to the law [MTP Act], married and unmarried women are allowed to terminate the pregnancy for up to 20 weeks.
However, Section 3(2)(i) read with Rule 3(2)(b) of the MTP (Amendment) Rules, 2021, does permit women to terminate the pregnancy of up to 24 weeks but only for specific categories of women. And that category does not include unmarried or single women.
[The ‘special categories’ under the Act consist of survivors of sexual assault or rape or incest, minors, women whose marital status changes during an ongoing pregnancy (widowhood and divorce), women with physical disabilities, mentally ill including mental retardation, in cases of foetal malformation that has a substantial risk of being incompatible with life, and lastly women with pregnancy in humanitarian/ disaster/ emergency.]
So I thought when widows and divorcees are allowed, and in the amendment [of the MTP Act], the word 'husband' has been replaced by partner, it also means that the Parliament intends to recognise and legitimise the live-in relationships.
But they haven't included unmarried women in Section 3(2)(b) of the Act. And this not only seemed discriminatory to me but also was a clear violation of Articles 14 and 21 (right to equality & right to life and personal liberty), respectively.
After going through her files, I informed her that we must file a petition before the Delhi High Court and seek permission to proceed with the termination. She agreed. Because we had little time, I immediately moved the court the next day, filed the writ petition before the High Court under Article 226 for interim relief, and challenged Rule 3(2)(b) of MTP Rule, 2021 as violative of Articles 14 and 21.
The court, however, dismissed the application for interim relief but issued notice to the Centre for a reply. They disagreed with my arguments and passed a quite literal interpretation of the MTP Rules in their judgement—that unmarried women are not allowed, so the order for termination can't be permitted. They suggested that she should continue the pregnancy and can later give up the child for adoption, and the state would bear the expenses.
But how is it appropriate to compel the petitioner to continue the pregnancy when she doesn't want to? It's a mental trauma for her. Her partner already ditched her at the last moment as he didn't want to marry her after the pregnancy. Then, in such a case, one should be allowed. How can the state impose restrictions or compel her to continue the pregnancy for up to nine months? And in societies like ours, these things are still considered taboo, so the petitioner would easily be stigmatised. Also, she would be subjected to mental trauma for the remaining months of pregnancy and her whole life.
The petitioner, since the first day she came to me, clearly wanted to terminate it anyhow. She even asked me, "Do whatever you can, but please help me". And so it was shocking and disappointing and difficult for me to inform the petitioner about the said order.
In the evening, I did inform her, and she was shocked and completely broken. She told me that "she doesn't want to live now". Completely broken. I could see that she had suicidal tendencies at the time. And it had also been over 24 weeks of the pregnancy by then. So I tried to console and sympathise with her, but it was very difficult to pacify her because she wouldn’t stop crying.
How did you challenge the High Court ruling in the Supreme Court?
Once the petitioner calmed down, I told her we should try for SLP (Special Leave Petition) in the Supreme Court as it has extraordinary power under Article 142 of the Constitution. And since it was a clear-cut case of discrimination and violation of Articles 14 and 21, the Supreme Court will consider it. She agreed. But the next two days, July 16 and 17, were weekends, so I prepared the SLP.
On Monday, the next day, only we filed an SLP in the Supreme Court in the early morning, appeared before the registry, cleared all the defects on the same day, and informed them about the urgency of the matter as 24 weeks had already passed. But in the Supreme Court, listing the matter for an urgent hearing remains the biggest challenge.
So, on 19 July, I appeared before the bench of the Chief Justice and explained to them the time sensitivity in this particular case. They understood and responded that they would consider the matter, but it was not listed yet. So I ran to the offices of the court master and registrar, and eventually, on the 20th night, around 10 o'clock, I received an email that read ‘the matter has been registered before a 3 Judge bench led by Justice D Y Chandrachud.’
The hearing began at 12:30 PM on July 21, and I presented my arguments before the Bench. They took into account the sensitivity of the case that if the state didn't help the petitioner, she would go to some quack or unqualified/ unlicensed person/ clinic and put her life at risk. And if that happens, then the objective of the MTP Act will be defeated because it aims to provide safe access to abortion to all women, right? I even submitted the United Nations Population Fund (UNFPA) data that eight women die in India daily due to unsafe abortions.
So the court immediately agreed and acknowledged the grey areas in the MTP Act and prima facie discrimination and violation of Articles 14 and 21. They finally passed an interim order at around 1:15 PM on the same day, listed the petition for hearing, and issued a notice to the Additional Solicitor General to comply with the order and look into it on priority. Had I not run for this matter, it would have taken at least 15 days to just get listed. Aur tab tak kuch nahi bachta (there would have been nothing left then).
What was your initial reaction after the order was passed? How did the petitioner respond?
At that moment, I felt relieved; it was truly a moment of happiness for me. After taking a second for myself, I immediately called the petitioner and informed her that we had been granted interim relief and she must rush to the AIIMS hospital. After submitting the copy of the order to the hospital, I met her there, and she cried a lot. She said, "I will be indebted to you for my entire life." She was so happy. I don't think I have enough words to explain that moment and her emotions. It was an out-of-the-world moment for both of us.
As a law practitioner, it does seem like a big achievement, but it also gives me a sense of relief that I was able to help someone because of my profession. And that’s what matters to me. Later on July 24th, the termination procedure was successfully performed in the AIIMS hospital.
After two hearings, on September 29, the Supreme Court passed this landmark judgment, removed grey areas from the law, and maintained the object and purpose of the MTP Act, which is to enable access to safe abortions for all women without discrimination.
What are your views on this judgement and its significance?
I feel that it's a wonderful order. And I will say that it truly is a historical judgement and takes our society a step ahead because the court also considers the nature of sexual assault against a woman by her husband. It permits her the right to terminate a ‘forcible’ pregnancy and does call such a form of violence ‘marital rape’, at least in the context of the MTP (Amendment) Act, 2021. [Petition on marital rape is scheduled for hearing in the Supreme Court in February 2023.]
And through this verdict, the court emphasises women’s consent even within marriages. The court underlined the ground realities and has considered all the possible circumstances. For instance, it talks about including abandoned/deserted women in the Act. And for the first time, it has also specified that the term women doesn’t only mean cis-women implying that other gender identities who have the reproductive system of the female sex should also be given the same abortion rights.
Before this judgement, the MTP Act, 2021 was hospital or doctor centric to a large extent. The choice of the woman was not considered at all. She was dependent on the hospital or the opinion of the doctor. But that aspect has also changed through this judgement.
What are some other cases you have worked on or working on?
On 13th September, I got another case of a minor, 16-year-old, who was carrying an unwanted pregnancy of 18 weeks which arose out of a "consensual and close relationship" and wanted to terminate it. But no doctor, RMP (regional medical practitioner) or hospital were ready to perform the abortion as it was mandatory to report the case to the police under Section 19(1) Protection of Children from Sexual Offences Act (POCSO), 2012. But the petitioner’s parents did not want that as they felt that would ruin the minor’s life. And contravening the said provision is a punishable offence of 6 months to two years of imprisonment for the doctors under Section 21 of the POCSO Act.
So on the 14th of September, I filed a writ petition before the Delhi High Court for interim relief and also challenged the constitutionality of section
19(1) POCSO as it violates Article 21 (Right to Privacy and Autonomy) of the Constitution. Two days later, the matter was listed before the court, where again, notice was issued to the respondents and Solicitor General to assist in the case.
The matter was later argued, and the High Court ordered an interim relief, and a notice was served on writ petition to the respondents for filing a reply. I informed the minor's mother, who was very happy after learning about the order. The termination procedure of the minor’s pregnancy was also conducted in AIIMS.
Do you think there is any scope for improvement in the latest verdict?
Yes, I feel there is no need to keep the termination limit to 20 weeks under the Act because that does not serve any purpose now. For example, if a married woman is in a happy and consensual marriage but she somehow carries an unwanted pregnancy of 20 to 24 weeks, and she couldn't get to know about it due to medical or any other reason. In that case, where would she go if she purposely doesn’t want to have more kids?
Because only single/unmarried and abandoned women are added to the special category list and are eligible for termination of up to 24 weeks, but married women whose pregnancy is not forced will not be able to access the same treatment, and if the state does not permit them to access it legally, their physical and mental health will be sacrificed. Therefore, I feel that it’s time we removed the 20 weeks because it doesn’t make any sense now.
How do you understand the ‘pro-life’ debate around abortion rights?
In many countries, the interest of the unborn child is paramount. I think that’s not the case in India, so to say, not now, at least. Because with the latest verdict, now the mother will be considered paramount. Because she is the one who will carry the pregnancy. The child is dependent on the mother. Mother is not dependent upon the child.
And the state should not coerce a woman to continue with the pregnancy when she doesn't want to. It's her body. It's her choice. It's her right to be a mother or not. That is not to say that there shouldn’t be any limit or restriction, but it should be reasonable, and the right to abortion should only be denied if there is a threat to the life of the child or mother. Not for any moralistic reason.
What do you think will impact this verdict, considering the abysmal ground reality?
After the initial hesitance, we will certainly be able to witness the change in public institutions. Because now, at least, the questions about a woman’s marital status would not be asked. I believe doctors would not ask women, ‘Why are you doing this?’ ‘Where is the partner? How did you get this pregnancy? Bring the consent of the partner. Bring the judicial order, FIR copy or anything like that.’
That being said, there is an urgent need for awareness programmes that special focus on remote areas. People need to be made aware of the changing laws and how they should use them to seek justice. It's the state's responsibility to create awareness among the hospitals, clinics (private or public), doctors, staff and other stakeholders.
Because the changes in laws can only benefit people if they know how to use them, and sadly, the ground reality remains grim. So definitely, there is a need to educate more and more people about this. Then only it can be called a progressive law in the real sense.
(Jyoti Thakur is an independent journalist based in New Delhi. Hanan Zaffar is a reporter based in South Asia. He has reported for, among others, VICE, Al Jazeera, DW News, Newsweek.)